10-2248-ag
Jiang v. Holder
BIA
Montante, IJ
A088 742 114
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 28th day of July, two thousand eleven.
PRESENT:
ROGER J. MINER,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
Bing Fang Jiang,
Petitioner,
v. 10-2248-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Oleh Roman Tustaniwsky, Brooklyn,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Stephen J. Flynn, Assistant
Director; Annette M. Wietecha,
Office of Immigration Litigation,
Civil Division, 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.
Petitioner Bing Fang Jiang, a native and citizen of
China, seeks review of a May 20, 2010 order of the BIA
affirming the May 2, 2008 decision of Immigration Judge
(“IJ”) Philip J. Montante, Jr. denying Jiang’s application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Bing Fang Jiang,
No. A088 742 114 (B.I.A. May 20, 2010), aff’g No. A088 742
114 (Immigr. Ct. Buffalo, N.Y. May 2, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
BIA’s factual findings for substantial evidence, treating
those findings as conclusive unless a reasonable adjudicator
would be compelled to conclude to the contrary, and review
questions of law de novo. See 8 U.S.C. § 1252(b)(4)(B); see
also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
2009).
2
Substantial evidence supports the agency’s adverse
credibility determination in this case. The agency
reasonably considered Jiang’s inconsistent testimony
regarding whether she entered the United States by paying a
smuggler and whether her purported mistreatment occurred in
December 2005, June 2006, or July 2006. Although Jiang
attempted to explain these inconsistencies as resulting from
nervousness and her affidavit having been mistranslated, the
agency was not compelled to accept those explanations. See
Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation
for his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled
to credit his testimony.” (emphasis in original; internal
quotation marks omitted)).
The agency also reasonably found Jiang not credible
based on her failure to include in her asylum application
the purported incident of having been tied to a pole by
villagers for practicing Christianity. This incident was
central to her asylum claim, and there was ample space on
the application for her to provide relevant information.
See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008)(per curiam) (holding that petitioner’s failure to
3
include length of his detention in asylum application
supported IJ’s adverse credibility determination).1
Together, these inconsistencies and omissions provide
substantial evidence supporting the agency’s adverse
credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Moreover, because Jiang’s
applications for asylum, withholding of removal, and CAT
relief share the same common factual basis, the agency did
not err in denying all three forms of relief based on its
adverse credibility determination. See Paul v. Gonzales,
444 F.3d 148, 155-56 (2d Cir. 2006).
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
1
Jiang’s reliance on Secaida-Rosales v. INS, 331
F.3d 297 (2d Cir. 2003) is misplaced. The REAL ID Act
abrogated Secaida-Rosales’s holding that the agency
cannot base its credibility determination solely on
“[i]nconsisties of less than substantial importance.”
Id. at 308; see 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167. Because Jiang’s application, filed
after May 2005, is governed by the REAL ID Act, see
Matter of S-B-, 24 I. & N. Dec. 42, 45 (B.I.A. 2006), the
agency may base its adverse credibility finding on
inconsisties that do not go to the heart of Jiang’s
asylum claim, see Xiu Xia Lin, 534 F.3d at 163-64, 167.
4
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
5