14-2572 He v. Lynch BIA Wright, IJ A200 818 381 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## CORRECTED SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED**  **ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE**  **32.1 AND**  **THIS COURT’S**  **LOCAL RULE**  **32.1.1. WHEN CITING**  **A SUMMARY**  **ORDER IN**  **A DOCUMENT**  **FILED WITH**  **THIS COURT,**  **A PARTY**  **MUST CITE**  **EITHER THE**  **FEDERAL APPENDIX**  **OR AN**  **ELECTRONIC DATABASE**  **(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.**  **At a stated term of the United States Court of Appeals for** 1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **27 th**  **day of July, two thousand fifteen.** 4 5 **PRESENT:** 6 **JOSÉ A.CABRANES** , 7 **DENNY CHIN,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **YUN HE,** 13 Petitioner **,** 14 15 **v. 14-2572** 16 **NAC** 17 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Thomas V. Massucci, New York, NY. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Cindy S. 27 Ferrier, Assistant Director; Kimberly 28 A. Burdge, Trial Attorney, Office of 292 Immigration Litigation, United States 1 Department of Justice, Washington D.C. 2 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review is 6

DENIED. 7 Yun He, a native and citizen of the People’s Republic of 8 China, seeks review of a June 24, 2014 decision of the BIA 9 affirming the November 20, 2012 decision of an Immigration Judge 10 (“IJ”), denying her application for asylum, withholding of 11 removal, and relief pursuant to the Convention Against Torture 12 (“CAT”). In re Yun He , No. A200 818 381 (B.I.A. June 24, 2014), 13 aff’g No. A200 818 381 (Immig. Ct. N.Y. City Nov. 20, 2012). 14 We assume the parties’ familiarity with the underlying facts 15 and procedural history in this case. 16 Under the circumstances of this case, we have reviewed the 17 IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S. 18 Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). The 19 applicable standards of review are well established. See 8 20 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 21 513 (2d Cir. 2009). 223 For asylum applications like He’s, governed by the REAL ID 1 Act of 2005, the agency may, “[c]onsidering the totality of the 2 circumstances,” base a credibility determination on 3 inconsistencies in an asylum applicant’s statements and other 4 record evidence “without regard to whether” the inconsistencies 5 go “to the heart of the applicant’s claim.” 8 U.S.C. 6 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 7 determination unless, from the totality of the circumstances, 8 it is plain that no reasonable fact-finder could make such” a 9 ruling. Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008) 10 (per curiam). Substantial evidence supports the agency’s 11 adverse credibility determination. 12 He sought asylum and related relief based on an alleged 13 forced abortion and an altercation resulting from the Chinese 14 government’s confiscation of her parents’ home. The agency 15 relied on multiple inconsistencies in finding He not credible. 16 For example, He described in her personal statement and 17 testimony her forced abortion in China for having a child out 18 of wedlock. However, she made no mention of this incident 19 during her credible fear interview, instead stating at the 20 interview that she left China after her parents’ home was 214 confiscated. See Ming Zhang v. Holder , 585 F.3d 715, 725-26 1 (2d Cir. 2009); see also Xiu Xia Lin , 534 F.3d at 166 n.3. The 2 agency was not required to credit her explanations for this 3 discrepancy, which were themselves inconsistent. See Majidi 4 v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). 5 Moreover, contrary to He’s argument, her credible fear 6 interview contained the required indicia of reliability 7 because: (1) the interview record was typewritten in a question 8 and answer format; (2) the interview was conducted through an 9 interpreter; (3) the interviewer explained to He the purpose 10 of the interview and the importance of providing full and 11 accurate testimony; and (4) the interviewer asked questions 12 that were designed to elicit a potential basis for asylum. See 13 Ming Zhang , 585 F.3d at 725. 14 The agency also reasonably relied on inconsistencies 15 between He’s testimony and her documentary evidence

. He stated 16 that she was beaten with a stick by cadres when they confronted 17 her parents about their failure to relinquish their property, 18 but her father’s letter did not mention that she was beaten. 19 Moreover, He’s testimony that her family’s home was demolished 20 in May or June 2010 conflicted with a letter from He’s friend, 215 who suggested that it had been demolished months earlier, and 1 a letter from her father, who listed the allegedly demolished 2 home as the return address. The agency was not required to 3 credit her explanations for these inconsistencies. See 4 Majidi , 430 F.3d at 80-81. 5 Having questioned He’s credibility, the agency did not err 6 in finding that her corroborating evidence did not rehabilitate 7 her incredible testimony. An applicant’s failure to 8 corroborate testimony may bear on credibility, either because 9 the absence of particular corroborating evidence is viewed as 10 suspicious, or because the absence of corroboration in general 11 makes an applicant unable to rehabilitate testimony that has 12 already been called into question. See Biao Yang v. Gonzales , 13 496 F.3d 268, 273 (2d Cir. 2007). The agency reasonably gave 14 diminished weight to letters from He’s father and friend 15 because, as discussed above, the letters were inconsistent in 16 part with He’s testimony, and, moreover, they were from 17 interested witnesses not subject to cross-examination. See 18 Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d 19 Cir. 2006). Moreover, the agency reasonably gave limited 20 weight to a certificate from He’s village committee stating that 216 He had an abortion because it was not prepared contemporaneously 1 and was obtained by her father, an interested party, for 2 purposes of her asylum claim. See id

. 3 Given the inconsistency and lack of corroboration 4 findings, substantial evidence supports the agency’s adverse 5 credibility determination. See Xiu Xia Lin , 534 F.3d at 167. 6 The adverse credibility determination is dispositive of asylum, 7 withholding of removal, and CAT relief, as the claims were based 8 on the same factual predicate. Paul v. Gonzales , 444 F.3d 148, 9 156-57 (2d Cir. 2006). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our rev iew, any stay of removal 12 that the Court previously granted in this petition is VACATED, 13 and any pending motion for a stay of removal in this petition 14 is DENIED as moot. Any pending request for oral argument in 15 this petition is DENIED in accordance with Federal Rule of 16 Appellate Procedure 34(a)(2) and Second Circuit Local Rule 17 34.1(b). 18 19

FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21