Jiang v. Lynch , 662 F. App'x 86 ( 2016 )

15-3890
Jiang v. Lynch
BIA
Loprest, IJ
A205 245 787
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 29th day of November, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 ROBERT D. SACK,
10 PETER W. HALL,
11 Circuit Judges.
12 _____________________________________
13
14 JIAN JIANG,
15 Petitioner,
16
17 v. 15-3890
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Ai Tong, New York, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Greg D.
28 Mack, Senior Litigation Counsel;
29 Lisa Morinelli, Trial Attorney;
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Jian Jiang, a native and citizen of the People’s
6 Republic of China, seeks review of a November 23, 2015, decision
7 of the BIA affirming a June 12, 2014, decision of an Immigration
8 Judge (“IJ”) denying Jiang’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Jian Jiang, No. A205 245 787 (B.I.A.
11 Nov. 23, 2015), aff’g No. A205 245 787 (Immig. Ct. N.Y. City
12 June 12, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
16 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
17 review are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu
18 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
19 For asylum applications like Jiang’s, governed by the REAL
20 ID Act, the agency may, “[c]onsidering the totality of the
21 circumstances,” base a negative credibility finding on an
22 asylum applicant’s demeanor and an inconsistency or omission
2
1 between the applicant’s statements and other record evidence.
2 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64,
3 166 n.3. “We defer . . . to an IJ’s credibility determination
4 unless, from the totality of the circumstances, it is plain that
5 no reasonable fact-finder could make such an adverse
6 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. In the
7 present case, substantial evidence supports the adverse
8 credibility determination.
9 The agency reasonably based its credibility finding on
10 Jiang’s omission of his medical treatment for injuries he
11 sustained during his detention. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67 & n.3 (“An
13 inconsistency and an omission are . . . functionally
14 equivalent” for credibility purposes). Jiang claimed for the
15 first time on cross examination that he received medical
16 treatment following his release from detention, stating that
17 his mother twice took him to a local clinic to have his injuries
18 treated. Neither his direct testimony, his asylum
19 application, nor his mother’s supporting letter mention this
20 treatment. The agency was not compelled to accept Jiang’s
21 explanation that he did not realize he needed to include details
22 of what happened after his release from detention, especially
3
1 because his application addressed post-detention issues, such
2 as the requirement that he report to the police after his
3 release. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
4 (“A petitioner ‘must do more than offer a ”plausible”
5 explanation for his inconsistent statements to secure relief;
6 “he must demonstrate that a reasonable fact-finder would be
7 compelled to credit his testimony.”’” (quoting Zhou Yun Zhang
8 v. U.S. INS, 386 F.3d 66,76 (2d Cir. 2004))).
9 The adverse credibility determination is further supported
10 by the IJ’s conclusion that Jiang’s unresponsive testimony
11 reflected a lack of credibility. 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of Justice, 426
13 F.3d 104, 113 (2d Cir. 2005) (deferring to demeanor findings
14 “in recognition of the fact that the IJ’s ability to observe
15 the witness’s demeanor places [him] in the best position to
16 evaluate whether apparent problems in the witness’s testimony
17 suggest a lack of credibility or, rather, can be attributed to
18 an innocent cause such as difficulty understanding the
19 question.”). The record reflects that Jiang took an unusually
20 long pause when asked to explain the omission of his medical
21 treatment from his asylum application, and another pause after
22 the IJ prompted him to answer. His testimony regarding both
4
1 his experiences in China and his practice of Christianity in
2 the United States was brief and lacked detail. The IJ did not
3 rely solely on a general finding of testimonial vagueness, as
4 Jiang argues, but rather took Jiang’s brief answers into account
5 along with the rest of the evidence in finding that he lacked
6 credibility. Cf. Shunfu Li v. Mukasey, 529 F.3d 141, 147-48
7 (2d Cir. 2008).
8 The agency also reasonably concluded that Jiang’s
9 corroborating evidence was insufficient to rehabilitate his
10 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
11 Cir. 2007). The agency determined that Jiang’s church
12 certificate and the letters from his mother and girlfriend were
13 entitled to diminished weight because the authors of these
14 documents were unavailable for cross examination and Jiang’s
15 mother and girlfriend were interested parties. “We defer to
16 the agency’s determination of the weight afforded to an alien’s
17 documentary evidence.” Y.C. v. Holder, 741 F.3d 324, 334 (2d
18 Cir. 2013). Additionally, Jiang’s mother’s letter did not
19 corroborate his testimony because it omitted the medical
20 treatment despite noting Jiang’s injuries.
21 Given the demeanor finding, the omission regarding Jiang’s
22 medical treatment, and the lack of corroborating evidence to
5
1 rehabilitate his claim of past persecution, the totality of the
2 circumstances supports the adverse credibility ruling. 8
3 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
4 Because Jiang’s claims were all based on the same factual
5 predicate, the adverse credibility determination is
6 dispositive of asylum, withholding of removal, and CAT relief.
7 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
6