Chang Lin Jiang v. Holder

12-3600 Jiang v. Holder BIA Van Wyke, IJ A078 853 855 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 16th day of January, two thousand fourteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 CHANG LIN JIANG, 14 Petitioner, 15 16 v. 12-3600 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, New York. 24 25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 26 Attorney General; John S. Hogan, 27 Senior Litigation Counsel; Michael 28 C. Heyse, Trial Attorney, Office of 29 Immigration Litigation, U.S. 30 Department of Justice, Washington 31 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 Petitioner Chang Lin Jiang, a native and citizen of the 6 People’s Republic of China, seeks review of an August 22, 7 2012, decision of the BIA, affirming the March 2, 2011, 8 decision of Immigration Judge (“IJ”) William P. Van Wyke, 9 denying Jiang’s application for asylum, withholding of 10 removal, and relief under the Convention Against Torture 11 (“CAT”). See In re Chang Lin Jiang, No. A078 853 855 12 (B.I.A. Aug. 22, 2012), aff’g No. A078 853 855 (Immig. Ct. 13 N.Y. City Mar. 2, 2011). We assume the parties’ familiarity 14 with the underlying facts and procedural history. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 18 2008). The applicable standards of review are well- 19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen 20 Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). In pre-REAL 21 ID Act cases, such as this case, an adverse credibility 22 determination must be based on “specific, cogent reasons” 2 1 that “bear a legitimate nexus” to the finding, and any 2 discrepancy must be “substantial” when measured against the 3 record as a whole. See Secaida-Rosales v. INS, 331 F.3d 4 297, 307 (2d Cir. 2003), superseded by the REAL ID Act as 5 recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 6 (2d Cir. 2008). 7 Substantial evidence supports the agency’s 8 determination that Jiang was not credible with respect to 9 his purported practice of Falun Gong. The agency found it 10 implausible that Jiang practiced Falun Gong in public in 11 China, where that practice is illegal, but never practiced 12 outside in his nine years of practicing in the United 13 States. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d 14 Cir. 2007); see also Siewe v. Gonzales, 480 F.3d 160, 168-69 15 (2d Cir. 2007). The agency also relied on Jiang’s inability 16 to provide any particulars of any pro-Falun Gong events he 17 claimed to have attended in the United States, except the 18 one at which he was photographed. See Jin Shui Qiu v. 19 Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003), overruled in 20 part on other grounds by Shi Liang Lin v. U.S. Dep’t of 21 Justice, 494 F.3d 296, 305 (2d Cir. 2007). 22 3 1 Having questioned Jiang’s credibility, it was 2 reasonable for the agency to rely further on his failure to 3 provide credible corroborating testimony to support his 4 claim that he practices and actively supports Falun Gong in 5 the United States. See Biao Yang v. Gonzales, 496 F.3d 268, 6 273 (2d Cir. 2007). Moreover, as the agency observed, the 7 testimony of Jiang’s witness did not independently or 8 credibly corroborate Jiang’s claim. See Xiao Ji Chen v. 9 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). 10 Accordingly, the agency’s adverse credibility determination 11 is supported by substantial evidence and provided an 12 adequate basis for denying Jiang asylum, withholding of 13 removal, and CAT relief insofar as those claims were based 14 on his practice of Falun Gong. See Shu Wen Sun, 510 F.3d at 15 379; see also Paul v. Gonzales, 444 F.3d 148, 155-57 (2d 16 Cir. 2006). 17 To the extent Jiang applied for CAT relief based on his 18 purported illegal departure from China, the agency 19 reasonably found that he failed to sustain his burden of 20 proof. An applicant such as Jiang cannot demonstrate that 21 he will more likely than not be tortured “based solely on 22 the fact that []he is part of the large class of persons who 23 have left China illegally” and on generalized evidence 4 1 indicating that torture occurs in Chinese prisons. See Mu 2 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d 3 Cir. 2005). Since Jiang submitted no particularized 4 evidence regarding the likelihood that he would face torture 5 upon repatriation to China, we find no error in the agency’s 6 denial of this claim. 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our review, petitioner’s 9 pending motion for a stay of removal is DENIED as moot. 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 5