10-4628-ag

Yang v. Holder

BIA

Laforest, IJ

A088 335 910

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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 A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of New

York, on the 27th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 REENA RAGGI,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _________________________________________

12

13 XIU ZHEN YANG, AKA TARIMOTO MASHIKO,

14 Petitioner, 

15

16 v. 10-4628-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _________________________________________

22 

23 FOR PETITIONER: Thomas V. Massucci, Esq., New York,

24 N.Y.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney General;

27 Blair T. O’Connor, Assistant Director;

28 Remi Da Rocha-Afodu, Trial Attorney;

29 Office of Immigration Litigation,

30 United States Department of Justice,

31 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED, that the petition for review

4 is DENIED.

5 Petitioner Xiu Zhen Yang, a native and citizen of the

6 People’s Republic of China, seeks review of an October 12,

7 2010 decision of the BIA affirming the December 15, 2008

8 decision of Immigration Judge (“IJ”) Brigitte Laforest denying

9 her application for asylum, withholding of removal, and

10 protection under the Convention Against Torture (“CAT”). In

11 re Xiu Zhen Yang, No. A088 335 910 (B.I.A. Oct. 12, 2010),

12 aff’g No. A088 335 910 (Immig. Ct. N.Y.C. Dec. 15, 2008). We

13 assume the parties’ familiarity with the underlying facts and

14 procedural history of the case.

15 Under the circumstances of this case, we review both the

16 BIA’s and the IJ’s opinions. See Yun-Zui Guan v. Gonzales,

17 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of

18 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);

19 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 

20 Because Yang filed her asylum application in 2008, the

21 REAL ID Act applies in this case. See REAL ID Act of 2005,

22 Div. B of Pub. L. No. 109-13, 119 Stat. 231 (2005); Chuilu Liu
3

1 v. Holder, 575 F.3d 193, 197 n.1 (2d Cir. 2009). For asylum

2 applications governed by the REAL ID Act, the agency may,

3 considering the totality of the circumstances, base a

4 credibility finding on an asylum applicant’s demeanor, the

5 plausibility of her account, and inconsistencies in her or her

6 witness’s statements, without regard to whether they go “to

7 the heart of the applicant’s claim.” 8 U.S.C.

8 § 1158(b)(1)(B)(iii); accord Xiu Xia Lin, 534 F.3d at 163-64. 

9 Substantial evidence supports the agency’s determination

10 that Yang did not testify credibly regarding her claim that

11 she had been persecuted in China. The agency reasonably

12 relied on inconsistencies in the record. See 8 U.S.C. 

13 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-

14 64, 166-68. Yang’s testimony and statement were inconsistent

15 with her mother’s letter regarding the cause and timing of her

16 father’s mental breakdown. The agency reasonably declined to

17 credit her explanation for that inconsistency—that her mother

18 was not highly educated—because the letter attributes the

19 cause of Yang’s father’s mental health problems to an

20 event—his wife’s forced sterilization—distinct from the

21 beating and detention that Yang claims to have caused her

22 father’s mental breakdown almost a decade later. Although
4

1 Yang argues that her mother’s letter can be construed to

2 comport with Yang’s testimony, Yang was required “to do more

3 than offer a ‘plausible’ alternative theory.” Wu Biao Chen v.

4 INS, 344 F.3d 272, 275 (2d Cir. 2003); see also Majidi v.

5 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (finding that

6 agency need not credit applicant’s explanations unless those

7 explanations would compel reasonable fact-finder to do so). 

8 Yang also argues that the agency erred in relying on her

9 testimony regarding her parents’ fake divorce and her father’s

10 subsequent fake marriage to undermine the credibility of her

11 mother’s letter and of her own testimony. The IJ’s decision

12 to give limited weight to this letter is entitled to

13 deference, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

14 315, 342 (2d Cir. 2006), and we conclude that the IJ

15 reasonably attributed the mother’s lack of credibility to Yang

16 as Yang submitted the letter to support her application. See

17 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (relying

18 on the maxim of falsus in uno, falsus in omnibus (false in one

19 thing, false in everything) to hold that once single document

20 is shown to be false, IJ is “free to deem suspect other

21 documents (and to disbelieve other testimony) that depend for

22 probative weight upon [applicant’s] veracity”). 
5

1 Similarly, the agency did not err in giving limited

2 weight to the certificates of hospitalization for Yang’s

3 father. This conclusion, which is entitled to deference, see

4 Xiao Ji Chen, 471 F.3d at 342, was reasonable, given that the

5 certificates neither were contemporaneous with the alleged

6 hospitalizations nor reflected any actual diagnoses or

7 treatment. 

8 Contrary to Yang’s arguments, having questioned Yang’s

9 credibility, the IJ reasonably relied further on her failure

10 to provide corroborating evidence to support her claims of

11 both past persecution and a fear of future persecution in

12 China. An applicant’s failure to corroborate testimony may

13 bear on credibility either because the absence of particular

14 corroborating evidence is viewed as suspicious, or because the

15 absence of corroboration in general prevents an applicant from

16 rehabilitating testimony that has already been called into

17 question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

18 Cir. 2007). Here, the agency reasonably concluded that, in

19 light of the inconsistencies in the record, Yang’s failure to

20 offer corroborating evidence further undermined her

21 credibility.

22
6

1 Ultimately, given these findings, the IJ’s adverse

2 credibility determination was supported by substantial

3 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

4 F.3d at 163-64. Accordingly, the agency did not err in

5 denying her applications for asylum, withholding of removal,

6 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d

7 Cir. 2006). 

8 For the foregoing reasons, the petition for review is

9 DENIED. As we have completed our review, any stay of removal

10 that the Court previously granted in this petition is VACATED,

11 and any pending motion for a stay of removal in this petition

12 is DISMISSED as moot. Any pending request for oral argument in

13 this petition is DENIED in accordance with Federal Rule of

14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15 34(b).

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk