Xiu Liang Jiang v. Holder

09-4124-ag Jiang v. Holder BIA Bukszpan, IJ A094 787 213 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 8 th day of July, two thousand ten. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT A. KATZMANN, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _______________________________________ 12 13 XIU LIANG JIANG, 14 Petitioner, 15 16 v. 09-4124-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Henry Zhang, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; William C. Peachey, 27 Assistant Director; Theo Nickerson, 28 Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 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 4 is DENIED. 5 Xiu Liang Jiang, a native and citizen of the People’s 6 Republic of China, seeks review of a September 11, 2009, 7 order of the BIA reversing the December 20, 2007, decision 8 of Immigration Judge (“IJ”) Joanna M. Bukszpan insofar as it 9 pretermitted Jiang’s asylum application, and affirming her 10 decision denying his applications for withholding of removal 11 and relief under the Convention Against Torture (“CAT”). In 12 re Xiu Liang Jiang, No. A094 787 213 (B.I.A. Sept. 11, 13 2009), aff’g in part No. A094 787 213 (Immig. Ct. N.Y. City 14 Dec. 20, 2007). We assume the parties’ familiarity with the 15 underlying facts and procedural history in this case. 16 Under the circumstances of this case, we review the 17 IJ’s decision as modified and supplemented by the BIA’s 18 decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 19 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 20 268, 271 (2d Cir. 2005) . The applicable standards of review 21 are well established. See 8 U.S.C. § 1252(b)(4)(B); see also 22 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) 23 (per curiam). 2 1 Substantial evidence supports the IJ’s adverse 2 credibility determination. For asylum applications governed 3 by the REAL ID Act, the agency may, considering the totality 4 of the circumstances, base a credibility finding on an 5 asylum applicant’s “demeanor, candor, or responsiveness,” 6 the plausibility of his or her account, and inconsistencies 7 in his or her statements, without regard to whether they go 8 “to the heart of the applicant’s claim.” 8 U.S.C. 9 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 167. 10 Contrary to Jiang’s argument, the agency did not err in 11 relying on the contents of the form I-213 (Record of 12 Deportable/Inadmissible Alien ) issued after he was detained 13 at the border. As we have found, an I-213 form is 14 “presumptively reliable,” because it “contain[s] guarantees 15 of reliability and trustworthiness that are substantially 16 equivalent” to those required of business records admissible 17 under the Federal Rules of Evidence. Felzcerek v. INS, 75 18 F.3d 112, 116-17 (2d Cir. 1996). In addition, we have 19 examined the reliability of the form I-213 and are confident 20 that it represents a “sufficiently accurate record” of 21 Jiang’s statements to merit consideration in determining 22 whether he was credible. Ramsameachire v. Ashcroft, 357 3 1 F.3d 169, 179 (2d Cir. 2004); see also Ming Zhang v. Holder, 2 585 F.3d 715, 724-25 (2d Cir. 2009). Therefore, the agency 3 reasonably relied on the inconsistency among the form I-213, 4 which stated that Jiang was a Christian, Jiang’s testimony 5 that he was a Buddhist, and his asylum application in which 6 he marked “n/a” in the space left for religion. See Xiu Xia 7 Lin, 534 F.3d at 167. To the extent that Jiang offered 8 explanations for these discrepancies, the IJ was not 9 compelled to credit them. See Majidi v. Gonzales, 430 F.3d 10 77, 80-81 (2d Cir. 2005). 11 Given these discrepancies, the IJ reasonably noted the 12 absence of evidence corroborating Jiang’s claim that he 13 began practicing Falun Gong because he suffered from 14 rheumatoid arthritis, and did not err in concluding that the 15 absence of such evidence further undermined his credibility. 16 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 17 Because Jiang’s claims for asylum, withholding of 18 removal, and CAT relief were all based on the same factual 19 predicate, the adverse credibility determination was fatal 20 to each of those claims. See Paul v. Gonzales, 444 F.3d 21 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of 22 Justice, 426 F.3d 520, 523 (2d Cir. 2005). 4 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 11 12 13 14 5