Bao v. Barr BIA Poczter, IJ A087 441 647

18-2595
Bao v. Barr
BIA
Poczter, IJ
A087 441 647
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 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 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 19
th
day of February, two thousand twenty. 4
5
PRESENT: 6
DENNIS JACOBS, 7
JOSÉ A. CABRANES, 8
JOSEPH F. BIANCO, 9
Circuit Judges. 10
_____________________________________ 11
12
YUE YE BAO, 13
Petitioner, 14
15
v. 18-2595 16
NAC 17
WILLIAM P. BARR, UNITED STATES 18
ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: Robert J. Adinolfi, New York, NY. 23
24
FOR RESPONDENT: Joseph H. Hunt, Assistant 25
Attorney General; Anthony P. 26
Nicastro, Assistant Director; 27
Yanal H. Yousef, Trial Attorney, 28

2

Office of Immigration Litigation, 1
United States Department of 2
Justice, Washington, DC. 3
4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petition for review 7
is DENIED. 8
Petitioner Yue Ye Bao, a native and citizen of the 9
People’s Republic of China, seeks review of an August 14, 10
2018 decision of the BIA affirming a November 1, 2013 decision 11
of an Immigration Judge (“IJ”) denying Bao’s application for 12
asylum, withholding of removal, and relief under the 13
Convention Against Torture (“CAT”). In re Yue Ye Bao, No. 14
A087 441 647 (B.I.A. Aug. 14, 2018), aff’g No. A087 441 647 15
(Immig. Ct. N.Y. City Nov. 1, 2013). We assume the parties’ 16
familiarity with the underlying facts and procedural history. 17
Validity of Removal Proceedings
18
Bao first argues that, under the Supreme Court’s decision 19
in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Notice to 20
Appear (“NTA”) charging her as removable was insufficient to 21
vest jurisdiction with the IJ because it did not contain a 22
hearing date or time. We have held, however, that Pereira 23
does not “void jurisdiction in cases in which an NTA omits a 24

3

hearing time or place . . . so long as a notice of hearing 1
specifying this information is later sent to the alien.” 2
Banegas Gomez v. Barr, 922 F.3d 101, 110, 112 (2d Cir. 2019). 3
Accordingly, because Bao unquestionably received notice of 4
her hearings at which she appeared, her argument that her NTA 5
was insufficient to commence removal proceedings is 6
foreclosed by Banegas Gomez. 7
Adverse Credibility Determination
8
Under the circumstances, we have reviewed the IJ’s 9
decision as modified by the BIA, i.e., minus the findings on 10
which the BIA did not rely. See Xue Hong Yang v. U.S. Dep’t 11
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable 12
standards of review are well established. See 8 U.S.C. 13
§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 14
(2d Cir. 2018). 15
“Considering the totality of the circumstances, and all 16
relevant factors, a trier of fact may base a credibility 17
determination on . . . the inherent plausibility of the 18
applicant’s or witness’s account, the consistency between the 19
applicant’s or witness’s written and oral statements . . . 20
[and] the internal consistency of each such statement . . . 21
without regard to whether an inconsistency, inaccuracy, or 22

4

falsehood goes to the heart of the applicant’s claim.” 1
8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. 2
Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008). Substantial 3
evidence supports the agency’s determination that Bao was not 4
credible as to her claim that family planning officials forced 5
her to terminate a pregnancy and sought to sterilize her for 6
violating China’s family planning policy. 7
The agency reasonably relied on a series of 8
inconsistencies in Bao’s testimony and between her testimony 9
and other evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). 10
Bao’s testimony that she lived in hiding and on the run from 11
family planning officials was implausible and inconsistent 12
with her testimony that she owned and openly operated a store 13
in Hangzhou for six years, that she owned and openly operated 14
a store in Shanghai for four years, that she twice travelled 15
to Hong Kong to purchase merchandise for her stores, and that 16
she frequently went back to her hometown. Bao’s testimony 17
that her husband lived in Inner Mongolia while she lived in 18
hiding by herself in Shanghai was inconsistent with her 19
husband’s letter that he moved with her to Shanghai. And Bao 20
made varying statements regarding how much she and her husband 21
were fined under the family planning policy. Similarly, the 22

5

agency did not err in relying on Bao’s mother’s failure to 1
mention in her letter that she received a family planning 2
notice directing Bao to report for sterilization. See Hong 3
Fei Gao, 891 F.3d at 78 (“[T]he probative value of a witness’s 4
prior silence on particular facts depends on whether those 5
facts are ones the witness would reasonably have been expected 6
to disclose.”). Bao could not compellingly explain these 7
inconsistencies and omissions. See Majidi v. Gonzales, 430 8
F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than 9
offer a plausible explanation for his inconsistent statements 10
to secure relief; he must demonstrate that a reasonable fact-11
finder would be compelled to credit his testimony.” (internal 12
quotation marks omitted)). 13
Having questioned Bao’s credibility, the agency 14
reasonably relied further on her failure to rehabilitate her 15
testimony with reliable corroborating evidence. “An 16
applicant’s failure to corroborate his or her testimony may 17
bear on credibility, because the absence of corroboration in 18
general makes an applicant unable to rehabilitate testimony 19
that has already been called into question.” Biao Yang v. 20
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency 21
reasonably declined to credit the letters from Bao’s family 22

6

members because, in addition to the inconsistencies noted 1
above, the authors were interested witnesses who were not 2
available for cross-examination. See Y.C. v. Holder, 741 3
F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the 4
agency’s evaluation of the weight to be afforded an 5
applicant’s documentary evidence.”); see also In re H-L-H- & 6
Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that 7
letters from alien’s friends and family were insufficient to 8
provide substantial support for alien’s claims because they 9
were from interested witnesses not subject to cross-10
examination), overruled on other grounds by Hui Lin Huang v. 11
Holder, 677 F.3d 130, 133–38 (2d Cir. 2012). 12
Given the inconsistency and corroboration findings, the 13
agency’s adverse credibility determination is supported by 14
substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). 15
That determination was dispositive of asylum, withholding of 16
removal, and CAT relief because all three forms of relief 17
were based on the same factual predicate. See Paul v. 18
Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). Contrary to 19
Bao’s contention, the IJ found her not credible as to the 20
entirety of her testimony, including her forced abortion 21
claim. 22

7

Competency
1
We need not review the agency’s competency determination 2
because Bao has abandoned that issue by not raising it in her 3
brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 4
545 n.7 (2d Cir. 2005). Nevertheless, we note that the agency 5
took appropriate measures to determine competency and 6
reasonably concluded that Bao was competent to proceed. See 7
In re M-A-M-, 25 I. & N. Dec. 474, 479–83 (B.I.A. 2011). 8
For the foregoing reasons, the petition for review is 9
DENIED. All pending motions and applications are DENIED and 10
stays VACATED. 11
FOR THE COURT: 12
Catherine O’Hagan Wolfe, 13
Clerk of Court 14