12-2759 Jiang v. Holder BIA Hom, IJ A093 341 885 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 13th day of September, two thousand thirteen. 5 6 PRESENT: 7 PETER W. HALL, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _______________________________________ 12 13 JIN HUA JIANG, 14 Petitioner, 15 16 v. 12-2759 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Lee Ratner, Law Offices of Michael 24 Brown, PC, New York, New York. 25 26 FOR RESPONDENT: Stuart F. Delery, Principal Deputy 27 Assistant Attorney General; Russell 28 J.E. Verby, Senior Litigation 29 Counsel; John D. Williams, Trial 1 Attorney, Office of Immigration 2 Litigation, United States Department 3 of Justice, Washington, D.C. 4 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 8 is DISMISSED in part and DENIED in part. 9 Jin Hua Jiang, a native and citizen of the People’s 10 Republic of China, seeks review of a June 18, 2012, decision 11 of the BIA affirming the May 27, 2011, decision of 12 Immigration Judge (“IJ”) Sandy K. Hom, which pretermitted 13 his application for asylum as untimely and denied his 14 applications for withholding of removal and relief under the 15 Convention Against Torture (“CAT”). In re Jin Hua Jiang, 16 No. A093 341 885 (B.I.A. June 18, 2012), aff’g No. A093 341 17 885 (Immig. Ct. N.Y. City May 27, 2011). We assume the 18 parties’ familiarity with the underlying facts and 19 procedural history in this case. 20 Because the BIA stated alternate grounds for denial 21 without rejecting any of the IJ’s reasoning, we have 22 reviewed both the IJ’s and the BIA’s decisions. See Ming 23 Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). The 24 applicable standards of review are well-established. 2 1 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 2 F.3d 510, 513 (2d Cir. 2009). 3 Under 8 U.S.C. § 1158(a)(3), no court shall have 4 jurisdiction to review the agency’s finding that an asylum 5 application was untimely under § 1158(a)(2)(B) unless a 6 petition raises a constitutional claim or question of law. 7 See id. § 1252(a)(2)(D). Although Jiang’s challenge to the 8 agency’s pretermission of his asylum application as untimely 9 is framed in terms of questions of law – whether the agency 10 erred in rejecting probative evidence and whether a fee 11 receipt was sufficient to discharge his burden of proof – we 12 lack jurisdiction to review his challenge because he merely 13 quarrels with the IJ’s factual determination. See 8 U.S.C. 14 § 1158(a); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 15 315, 329 (2d Cir. 2006). Accordingly, we dismiss the 16 petition in part as to asylum. As Jiang has waived any 17 challenge to the agency’s denial of CAT relief, the only 18 issue before us is whether the agency erred in denying 19 withholding of removal. 20 For applications for withholding of removal such as 21 Jiang’s, governed by the amendments made to the Immigration 22 and Nationality Act by the REAL ID Act of 2005, the agency 3 1 may, considering the totality of the circumstances, base a 2 credibility finding on an asylum applicant’s “demeanor, 3 candor, or responsiveness,” and any inconsistencies in his 4 statements, without regard to whether those inconsistencies 5 go “to the heart of the applicant’s claim.” 8 U.S.C. 6 § 1158(b)(1)(B)(iii); see also 8 U.S.C. § 1231(b)(3)©. This 7 Court “defer[s] to an IJ’s credibility determination unless, 8 from the totality of the circumstances, it is plain that no 9 reasonable fact-finder could make such an adverse 10 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 11 167 (2d Cir. 2008) (per curiam). 12 Here, substantial evidence supports the agency’s 13 adverse credibility determination. Contrary to Jiang’s 14 contention, the IJ reasonably characterized as inconsistent 15 his testimony about the dates related to his persecution in 16 China because Jiang initially testified that he was reported 17 for hiding a Falun Gong practitioner on September 13, 2004, 18 but later he indicated it was September 28, 2004. Id. 19 Moreover, as the agency found, Jiang’s inability to recall 20 important dates related to his alleged persecution without 21 prompting from his attorney undermined his credibility. See 22 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d 4 1 Cir. 2005) (affording “particular deference” to credibility 2 determinations that are based on the adjudicator’s 3 observation of the applicant’s demeanor). 4 Jiang also contends that he sufficiently corroborated 5 his claim. However, the agency reasonably determined that 6 Jiang failed to adequately corroborate his Falun Gong 7 practice in China given that the evidence he provided lacked 8 the indicia of reliability. See 8 U.S.C. 9 § 1158(b)(1)(B)(ii); see also Chuilu Liu v. Holder, 575 F.3d 10 193, 197-98 (2d Cir. 2009); Xiao Ji Chen, 471 F.3d at 342. 11 The agency reasonably afforded limited evidentiary weight to 12 a letter from Jiang’s wife because she lacked personal 13 knowledge of relevant events in China, and to statements 14 from other family members because they were unsworn, 15 unauthenticated, and based on hearsay. See Xiao Ji Chen, 16 471 F.3d at 342; Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 17 215 (BIA 2010), overruled on other grounds by Hui Lin Huang 18 v. Holder, 677 F.3d 130 (2d Cir. 2012). 19 Finally, Jiang’s accurate observation that the IJ 20 misidentified his attorney’s name in the written decision is 21 insufficient to require remand because the error was 22 superficial and did not taint the IJ’s reasoning for denying 23 relief. Tu Lin v. Gonzales, 446 F.3d 395, 401 (2d Cir. 24 2006). 5 1 For the foregoing reasons, the petition for review is 2 DISMISSED, in part, and DENIED, in part. As we have 3 completed our review, any stay of removal that the Court 4 previously granted in this petition is VACATED, and any 5 pending motion for a stay of removal in this petition is 6 DENIED as moot. 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 6