Jiang v. Sessions ( 2018 )

16-2329
Jiang v. Sessions
BIA
Poczter, IJ
A205 597 005
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 4th day of May, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR.,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
_____________________________________
TAO JIANG,
Petitioner,
v. No. 16-2329
NAC
JEFFERSON B. SESSIONS, III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Esq., New York,
New York.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Justin Markel,
Senior Litigation Counsel;
Margaret A. O’Donnell, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Tao Jiang, a native and citizen of the
People’s Republic of China, seeks review of the BIA’s
affirmance of an Immigration Judge’s (“IJ’s”) denial of Tao
Jiang’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). See In
re Tao Jiang, No. A205 597 005 (B.I.A. June 17, 2016), aff’g
No. A205 597 005 (Immig. Ct. N.Y.C. Oct. 2, 2014). Under the
circumstances of this case, we review both the IJ’s and the
BIA’s opinions “for the sake of completeness,” Wangchuck v.
Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006),
applying well-established standards of review, see 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
66 (2d Cir. 2008). In so doing, we assume the parties’
familiarity with the underlying facts and procedural history
of this case, which we reference only as necessary to explain
our decision to deny the petition for review.
The IJ, considering the totality of the circumstances
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and all relevant factors, “may base a credibility
determination on . . . the inherent plausibility of the
applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . . ,
the internal consistency of each such statement, [and] the
consistency of such statements with other evidence of record
. . . without regard to whether an inconsistency, inaccuracy,
or falsehood goes to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey,
534 F.3d at 163-64. Substantial evidence supports the
agency’s determination that Tao Jiang was not credible as to
his claim that Chinese police detained and beat him on account
of his practice of Christianity in an underground church.
First, the agency reasonably relied on an inconsistency
between Tao Jiang’s testimony that he attended a new church
after his release from detention and a letter from his first
church indicating that he remained an active member of that
church after his release. See 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin v. Mukasey, 534 F.3d at 165-67. Tao Jiang first
explained that he had not registered at the second church.
He then testified that the two churches were the same. These
inconsistent explanations did not provide a compelling
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explanation for the initial inconsistency between Tao Jiang’s
testimony and the church letter and, instead, provided
further support for the adverse credibility determination.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430
F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
offer a plausible explanation for his inconsistent statements
to secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.” (emphasis
in original) (internal quotation marks omitted)).
Second, the agency reasonably found Tao Jiang’s evidence
inconsistent and his testimony implausible regarding his
assertion that he hid from police at his uncle’s house for
three months after being recognized by police and narrowly
escaping a second arrest at church. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Wensheng Yan v. Mukasey, 509 F.3d 63,
66-68 (2d Cir. 2007) (recognizing that adverse credibility
determination may be based on inherent implausibility in
applicant’s story if “finding is tethered to record evidence”
or based on common sense). Tao Jiang and his uncle provided
statements that Tao Jiang hid in fear of being arrested, but
Tao Jiang’s witness testified that he did not know that Tao
Jiang had been in hiding and that Tao Jiang had met him in
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public during that time. When asked to explain this apparent
inconsistency, Tao Jiang testified implausibly that there
were no police on the streets when he went out because it was
lunchtime on the first occasion and a holiday on the second.
See Wensheng Yan v. Mukasey, 509 F.3d at 66-68.
Given the inconsistency and implausibility findings,
substantial evidence supports the agency’s adverse
credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d at
167. That determination is dispositive of Tao Jiang’s claims
for asylum, withholding of removal, and CAT relief because
all three claims are based on the same factual predicate. 1
See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1 Accordingly, we need not address whether the BIA correctly
determined that Tao Jiang waived his CAT claim or whether
that claim is exhausted. See 8 U.S.C. § 1252(d)(1); Gill
v. I.N.S., 420 F.3d 82, 85–87 (2d Cir. 2005).
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