Wang v. Lynch , 659 F. App'x 20 ( 2016 )

14-3995
Wang v. Lynch
BIA
Nelson, IJ
A098 862 352
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 26th day of August, two thousand sixteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 HAICHEN WANG,
14 Petitioner,
15
16 v. 14-3995
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Zhong Yue Zhang, Esq., Flushing, New
25 York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General;
29 Jennifer P. Levings, Senior
30 Litigation Counsel; Julia J. Tyler,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Haichen Wang, a native and citizen of the
10 People’s Republic of China, seeks review of an October 21, 2014
11 decision of the BIA affirming a July 17, 2012 decision of an
12 Immigration Judge (“IJ”) denying Wang’s application for asylum,
13 withholding of removal, and relief under the Convention Against
14 Torture (“CAT”). In re Haichen Wang, No. A098 862 352 (B.I.A.
15 Oct. 21, 2014), aff’g No. A098 862 352 (Immig. Ct. N.Y. City
16 July 17, 2012). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Under the circumstances of this case, we review the IJ’s
19 decision, including the portions not explicitly discussed by
20 the BIA, see Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
21 Cir. 2005), applying well established standards of review, see
2
1 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
2 513 (2d Cir. 2009).
3 Where, as here, an asylum application is governed by the
4 REAL ID Act, the agency may, “[c]onsidering the totality of the
5 circumstances,” base a credibility finding on an asylum
6 applicant’s “demeanor, candor, or responsiveness,” the
7 plausibility of his account, and inconsistencies in his
8 statements, “without regard to whether” they go “to the heart
9 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
10 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). “We
11 defer . . . to an IJ’s credibility determination unless, from
12 the totality of the circumstances, it is plain that no
13 reasonable fact-finder could make such an adverse credibility
14 ruling.” Xiu Xia Lin, 534 F.3d at 167.
15 Here, substantial evidence supports the IJ’s adverse
16 credibility determination. The IJ reasonably relied on
17 inconsistencies between Wang’s testimony and the letters
18 submitted by his wife and son, and on Wang’s demeanor. See 8
19 U.S.C. § 1158(b)(1)(B)(iii). Wang’s asylum application
20 stated that his wife was taken to a police station in 2005, where
21 she was beaten and abused; he testified consistently with this
3
1 statement, and added that his wife was arrested. However, the
2 letters Wang submitted from his wife and son stated that his
3 wife was hit and that her house was searched, but did not mention
4 an arrest or her being taken to the police station. The IJ
5 reasonably relied on this omission of relevant information.
6 See Xiu Xia Lin, 534 F.3d at 166 n.3. As this incident is the
7 main proof Wang offers for the proposition that Chinese
8 authorities are aware of his political activism in the United
9 States, the inconsistency is particularly damaging to his
10 credibility. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446
11 F.3d 289, 295 (2d Cir. 2006).
12 Wang’s credibility was further undermined by his lack of
13 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
14 268, 273 (2d Cir. 2007). The IJ was not required to credit the
15 letters from Wang’s wife and son, which were the only evidence
16 indicating that Chinese authorities were aware of Wang’s
17 political activism. In addition to conflicting with Wang’s
18 testimony, see Xiu Xia Lin, 534 F.3d at 166 n.3, the letters
19 were unsworn and were written by interested parties who were
20 unavailable for cross-examination, see Y.C. v. Holder, 741 F.3d
21 324, 334 (2d Cir. 2013).
4
1 The adverse credibility determination is also supported by
2 the IJ’s observations of Wang, who frequently hesitated before
3 answering questions during cross-examination. We afford
4 particular deference to an IJ’s assessment of an applicant’s
5 demeanor, especially when those observations are supported by
6 specific inconsistencies in the record. See Li Hua Lin v. U.S.
7 Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006); Jin Chen v.
8 U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005).
9 Thus, substantial evidence supports the IJ’s adverse
10 credibility determination regarding Wang’s contention that
11 Chinese authorities are aware of his political activism. See
12 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165-66.
13 Because asylum, withholding of removal, and CAT relief all turn
14 on this proposition, the credibility determination is
15 dispositive of his petition. See Paul v. Gonzales, 444 F.3d
16 148, 156-57 (2d Cir. 2006). Accordingly , the petition for
17 review is DENIED. As we have completed our review, any stay
18 of removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in this
20 petition is DISMISSED as moot. Any pending request for oral
21 argument in this petition is DENIED in accordance with Federal
5
1 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local
2 Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk of Court
6