Weiyan Jiang v. Holder , 431 F. App'x 40 ( 2011 )

10-1735-ag (L)
Jiang v. Holder
BIA
DeFonzo, IJ
A076 104 530
A072 765 729
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
4 New York, on the 19th day of July, two thousand eleven.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 WEIYAN JIANG, XIANG QUAN JIANG, also
14 known as TAMOTSU TAJIMA,
15 Petitioners,
16
17 v. 10-1735-ag(L);
18 10-4160-ag(Con)
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Nathan Weill, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Holly M. Smith, Senior
29 Litigation Counsel; Claire L.
1 Workman, Trial Attorney, Office of
2 Immigration Litigation, Civil
3 Division, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 decision of the Board of Immigration Appeals (“BIA”), it is
8 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
9 review is DENIED.
10 Petitioners Weiyan Jiang and Xiang Quan Jiang, natives
11 and citizens of China, seek review of the April 22, 2010,
12 orders of the BIA affirming the May 15, 2008, decision of an
13 Immigration Judge (“IJ”), denying their applications for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Weiyan Jiang, No.
16 A076 104 530 (B.I.A. Apr. 22, 2010) and In re Xiang Quan
17 Jiang, No. A072 765 729 (B.I.A. Apr. 22, 2010), aff’g Nos.
18 A072 765 729/076 104 530 (Immig. Ct. N.Y. City May 15,
19 2008). We assume the parties’ familiarity with the
20 underlying facts and procedural history of the case.
21 Under the circumstances of this case, we have
22 considered both the IJ’s and the BIA’s opinions “for the
23 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
24 (2d Cir. 2008). The applicable standards of review are
25 well-established. 8 U.S.C. § 1252(b)(4)(B); see also
2
1 Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);
2 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
3 The IJ’s credibility determination is supported by
4 substantial evidence because it is based on “specific,
5 cogent reasons” that “bear a legitimate nexus” to the
6 finding. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d
7 Cir. 2003). The IJ identified a number of inconsistencies
8 within each petitioner’s testimony, between their testimony,
9 and between their testimony and their previous statements.
10 See Zhou Yun Zhang v. INS, 386 F.3d 66, 77-78 (2d Cir. 2004)
11 (concluding that inconsistencies in an alien’s statements
12 qualify as “sufficient, cogent” reasons sufficient to
13 support an adverse credibility determination). The IJ noted
14 that Mrs. Jiang initially testified that her pregnancy was
15 discovered in March 1993, but later testified that it was
16 discovered in January 1993, and changed her testimony
17 several times regarding where she went after the abortion.
18 Mr. and Mrs. Jiang contradicted each other regarding the
19 circumstances under which Mrs. Jiang went into hiding, as
20 she testified that she hid at her sister’s home with her
21 husband and son, but Mr. Jiang stated that she went into
22 hiding without him. Mr. Jiang attempted to explain this
23 inconsistency by stating that his wife came out of hiding,
3
1 then returned, but Mrs. Jiang stated that she did not come
2 home or leave her sister’s house at all after going into
3 hiding. In addition, Mr. Jiang testified that he fled his
4 home in early May 1993, joined his wife at her sister’s
5 house for one day, and then left, but, as the IJ pointed
6 out, he had testified at a previous hearing that he did not
7 leave his sister-in-law’s home until late May. Because
8 these inconsistencies relate to Mrs. Jiang’s alleged forced
9 abortion and the surrounding events – the basis of Mr. and
10 Mrs. Jiang’s claims – they are not minor or immaterial, but,
11 instead, go to the heart of their claims. See Secaida-
12 Rosales, 331 F.3d at 307; see also Tu Lin v. Gonzales, 446
13 F.3d 395, 402 (2d Cir. 2006) (internal citations omitted)
14 (“even where an IJ relies on discrepancies or lacunae that,
15 if taken separately, concern matters collateral or ancillary
16 to the claim, . . . the cumulative effect may nevertheless
17 be deemed consequential by the fact-finder”); Liang Chen v.
18 U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir. 2006) (“[A]n
19 IJ need not consider the centrality vel non of each
20 individual discrepancy or omission” and can instead “rely
21 upon the cumulative impact of such inconsistencies, and may
22 conduct an overall evaluation of testimony in light of its
4
1 rationality or internal consistency and the manner in which
2 it hangs together with other evidence.”).
3 Petitioners also argue that the IJ erred in relying on
4 an inconsistency between the testimony and Mr. Jiang’s
5 statements in his airport interview, because the interview
6 was unreliable. Given that the numerous inconsistencies
7 described above provide substantial evidence supporting the
8 agency’s adverse credibility determination, we need not
9 reach the reliability of Mr. Jiang’s airport interview. See
10 Diallo v. U.S. Dep’t of Justice, 548 F.3d 232, 235 & n.3 (2d
11 Cir. 2008).
12 Petitioners further argue that the IJ abused his
13 discretion in declining to grant their request for a
14 continuance to permit a psychological evaluation of Mr.
15 Jiang. An IJ has the authority to grant a continuance “for
16 good cause shown.” 8 C.F.R. § 1003.29. We review the BIA’s
17 affirmance of an IJ’s denial of a continuance for abuse of
18 discretion. Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.
19 2006). An IJ abuses his discretion only “if (1) his
20 decision rests on an error of law (such as application of
21 the wrong legal principle) or a clearly erroneous factual
22 finding or (2) his decision – though not necessarily the
5
1 product of a legal error or a clearly erroneous factual
2 finding – cannot be located within the range of permissible
3 decisions.” Morgan, 445 F.3d at 551-52 (citations, internal
4 quotation marks, and alterations omitted). Here, the Jiangs
5 have pointed to no legal or factual error in the IJ’s denial
6 of a continuance, concede that “Mr. Jiang’s strange
7 testimony could simply be a result of his lack of
8 credibility,” but argue that “it is also possible that he
9 suffers from memory problems or other psychological problems
10 that did not become apparent until he was required to
11 [testify] in Court.” In recognizing that untruthfulness
12 could have caused Mr. Jiang’s inconsistencies and alleging
13 only the unsubstantiated possibility that Mr. Jiang had a
14 mental defect, Petitioners fail to show that the IJ’s
15 decision “cannot be located within the range of permissible
16 decisions” so as to constitute an abuse of discretion. Id.17 Because all of Petitioners’ claims are based on the
18 same factual predicate, the IJ’s adverse credibility
19 determination was a proper basis for the denial of their
20 asylum, withholding of removal, and CAT claims. See Paul v.
21 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
22 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
6
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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