Chang Ming Jiang v. Holder

12-686
Jiang v. Holder
BIA
Cheng, IJ
A097 543 001
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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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 8th day of August, two thousand thirteen.

PRESENT:
JON O. NEWMAN,
JOHN M. WALKER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________

CHANG MING JIANG,
Petitioner,

v. 12-686
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________

FOR PETITIONER: Zhong Yue Zhang, New York, NY.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Alison Marie Igoe,
Senior Counsel; Lyle D. Jentzer,
Senior Counsel; Kathleen E.
Imbriglia, Legal Intern, National
Security Unit, 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.

Chang Ming Jiang, a native and citizen of the People’s

Republic of China, seeks review of a January 30, 2012,

decision of the BIA affirming the April 29, 2010, decision

of Immigration Judge (“IJ”) Mary M. Cheng, which denied his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Chang

Ming Jiang, No. A097 543 001 (B.I.A. Jan. 30, 2012), aff’g

No. A097 543 001 (Immig. Ct. N.Y. City Apr. 29, 2010). We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA. See Yan Chen

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

applicable standards of review are well-established. See

8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

562 F.3d 510, 513 (2d Cir. 2009).

2
For asylum applications, like Jiang’s, governed by the

amendments made to the Immigration and Nationality Act by

the REAL ID Act of 2005, the agency may, considering the

totality of the circumstances, base a credibility finding on

an asylum applicant’s “demeanor, candor, or responsiveness,”

the plausibility of his account, and inconsistencies in his

statements, without regard to whether they go “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 162, 167 (2d Cir.

2008). Furthermore, for purposes of a credibility

determination, “[a]n inconsistency and an omission are . . .

functionally equivalent.” Xiu Xia Lin, 534 F.3d at 166. We

“defer to an IJ’s credibility determination unless, from the

totality of the circumstances, it is plain that no

reasonable fact-finder could make” such a ruling. Id. at

167. In this case, the agency reasonably based its adverse

credibility determination on Jiang’s omissions and demeanor.

In his sworn border patrol interview, Jiang did not

mention that he left China, or feared returning to China,

because of his Christian faith or membership in an

underground church, despite being asked why he came to the

United States, whether he feared returning to China, and why

3
he feared returning to China. It was not until his credible

fear interview, two weeks later, that he stated that he left

China to “avoid persecution” by the Chinese government

“[b]ecause [he was] Christian and [] belonged to an

underground church.” When discrepancies arise from an

applicant’s statements in a border or credible fear

interview, we closely examine the record of the interview to

ensure that it represents a “sufficiently accurate record”

of the applicant’s statements to merit consideration in

determining whether the applicant is credible. Ming Zhang

v. Holder, 585 F.3d 715, 723-25 (2d Cir. 2009);

Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004).

Here, the record of the border interview bears considerable

indicia of reliability, as it provides a verbatim account of

Jiang’s statements, the questions regarding his fear of

return were clearly designed to elicit the details of an

asylum claim, the interview was translated by a Chinese

interpreter, and Jiang stated at the beginning of the

interview that he understood what the border patrol officer

was saying, and gave no later indication that he could not

understand or was confused. See Ramsameachire, 357 F.3d at

179-80.

4
When asked during his testimony why he omitted any

mention of his Christian faith during the border patrol

interview, Jiang stated that it was “because the first time

I went in there, I did not know” and because the border

agent “said he w[ould] not send me back.” The agency

reasonably declined to credit this explanation as not

“plausible . . . or reasonable.” See Majidi v. Gonzales,

430 F.3d 77, 80-81 (2d Cir. 2005). In Jiang’s brief to the

BIA he argued that his response to the question regarding

why he feared returning to China was “reasonable under the

circumstances” because he left China illegally as a result

of his participation in an underground Christian church.

While the BIA may have erred in not addressing or

considering this explanation, remand would be futile because

those statements were made by Jiang’s attorney, and are not

supported by an affidavit or any other evidence from Jiang.

See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395

(2d Cir. 2005); INS v. Phinpathya, 446 U.S. 183, 188-89 n.6

(1984); see also Majidi, 430 F.3d at 80-81.

Because the REAL ID Act permits the agency to base a

credibility finding on any inconsistency, without regard to

whether it goes “to the heart of the applicant’s claim,”

8 U.S.C. § 1158(b)(1)(B)(iii), Jiang’s omission from his
5
border patrol interview provides substantial evidence

supporting the agency’s adverse credibility determination.

See Xiu Xia Lin, 534 F.3d at 166, 167. The adverse

credibility determination is further supported by the IJ’s

demeanor finding. The IJ noted that Jiang’s responses to

questions were “non-responsive, evasive and rehearsed” and

that additionally Jiang was “very hesitant” in answering

questions. Because the IJ was in the best position to

observe Jiang’s manner while testifying, we afford the

demeanor finding particular deference. See Tu Lin v.

Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).

Given these findings, we conclude that the totality of

the circumstances supports the agency’s adverse credibility

determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

Lin, 534 F.3d at 167. Because the only evidence of a threat

to Jiang’s life or freedom depended upon his credibility,

the adverse credibility finding necessarily precludes

success on his claims for asylum, withholding of removal,

and CAT relief, and we need not reach the agency’s

alternative conclusion that Jiang failed to demonstrate a

well-founded fear of persecution. See Paul v. Gonzales, 444

F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 523 (2d Cir. 2005).
6
For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk