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