Jiang v. Lynch , 639 F. App'x 740 ( 2016 )

13-4
Jiang v. Lynch
BIA
Poczter, IJ
A200 939 375
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of February, two thousand sixteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 WEI HUA JIANG,
14 Petitioner,
15
16 v. 13-4
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,*
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
24 LLC, New York, New York.
25
26
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Leslie McKay, Assistant
3 Director; Jessica A. Dawgert, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Wei Hua Jiang, a native and citizen of
13 China, seeks review of a December 5, 2012, decision of the
14 BIA affirming a July 14, 2011, decision of Immigration Judge
15 (“IJ”) Aviva L. Poczter, denying Jiang’s application for
16 asylum, withholding of removal and relief under the
17 Convention Against Torture (“CAT”). In re Wei Hua Jiang,
18 No. A200 939 375 (B.I.A. Dec. 5, 2012), aff’g No. A200 939
19 375 (Immig. Ct. N.Y.C. July 14, 2011). We assume the
20 parties’ familiarity with the underlying facts and
21 procedural history in this case.
22 Under the circumstances of this case, where the BIA
23 affirmed the IJ without opinion we review the IJ’s decision.
24 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
25 The applicable standards of review are well-established.
26
2
1 See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534
2 F.3d 162, 165-66 (2d Cir. 2008).
3 For applications like this one, governed by the REAL ID
4 Act of 2005, the agency may base a credibility finding on an
5 asylum applicant’s demeanor, the plausibility of his
6 account, and inconsistencies in his statements, without
7 regard to whether they go “to the heart of the applicant’s
8 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Analyzed under
9 these standards, the agency’s adverse credibility
10 determination is supported by substantial evidence.
11 In finding Jiang incredible, the IJ reasonably relied
12 on his inconsistent statements about the date of his arrest.
13 This inconsistency was particularly significant because the
14 arrest was Jiang’s sole allegation of past persecution.
15 Given that Jiang did not arrive in the United States until
16 August 2010, a reasonable fact-finder would not be compelled
17 to credit his contention that his testimony that he was
18 arrested in March 2010 was a reference to his immigration
19 detention. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
20 Cir. 2005) (holding that the agency need not credit an
21 applicant’s explanations unless those explanations would
22 compel a reasonable fact-finder to do so).
3
1 In light of its credibility findings, the agency
2 reasonably noted that Jiang’s failure to provide
3 corroborative evidence further undermined his credibility.
4 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
5 The letter from Jiang’s pastor did not provide adequate
6 corroboration because it stated that he had attended church
7 since April 2011, while he had testified that he began
8 attending church in September 2010. Further, as the letter
9 was dated June 2011, the agency reasonably declined to
10 credit Jiang’s explanation that the letter was written in
11 April 2011. See Majidi, 430 F.3d at 80-81.
12 Although an IJ may err in basing an adverse credibility
13 finding on the absence of corroborating evidence that was
14 not reasonably available, see Li Zu Guan v. I.N.S., 453 F.3d
15 129, 141 (2d Cir. 2006), here, Jiang has not provided a
16 compelling explanation for his failure to provide any other
17 evidence supporting his claim.
18 Accordingly, given that the inconsistencies relate to
19 the sole allegation of past harm and to whether Jiang is a
20 practicing Christian, as well as the lack of corroborating
21 evidence, the agency’s adverse credibility determination is
22 supported by substantial evidence, see 8 U.S.C.
4
1 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167, and it
2 is not necessary for us to consider the IJ’s alternative
3 finding that Jiang did not meet his burden of proof.
4 As the agency reasonably found that Jiang failed to
5 establish eligibility for asylum on credibility grounds, the
6 agency did not err in denying withholding of removal and
7 relief under the CAT, as these claims shared the same
8 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-
9 57 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
10 426 F.3d 520, 523 (2d Cir. 2005).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DENIED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
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