13-2819
Dong v. Holder
BIA
Wright, IJ
A200 905 363
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 TO 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
2 Appeals for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of New
4 York, on the 28th day of October, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XING LE DONG,
14
15 Petitioner,
16
17 v. 13-2819
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED
21 STATES ATTORNEY GENERAL,
22
23 Respondent.
24
25 _____________________________________
26
27 FOR PETITIONER: Thomas V. Massucci, New York, New
28 York.
1
2 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
3 General; Cindy S. Ferrier, Assistant
4 Director; Kimberly A. Burdge, Trial
5 Attorney, Office of Immigration
6 Litigation, United States Department
7 of Justice, Washington D.C.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Xing Le Dong, a native and citizen of China, seeks
13 review of a June 28, 2013, decision of the BIA affirming the
14 November 22, 2011, decision of an Immigration Judge (“IJ”),
15 which denied his application for asylum, withholding of
16 removal, and relief pursuant to the Convention Against
17 Torture (“CAT”). In re Xing Le Dong, No. A200 905 363
18 (B.I.A. June 28, 2013), aff’g No. A200 905 363 (Immig. Ct.
19 N.Y. City Nov. 22, 2011). We assume the parties’
20 familiarity with the underlying facts and procedural history
21 in this case.
22 Under the circumstances of this case, we have reviewed
23 the IJ’s decision as modified and supplemented by the BIA.
24 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
25 522 (2d Cir. 2005). The applicable standards of review are
2
1 well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
2 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 We conclude that the inconsistencies cited by the
4 agency provide substantial evidence to support the adverse
5 credibility determination. For asylum applications like
6 Dong’s, governed by the REAL ID Act of 2005, the agency may,
7 “[c]onsidering the totality of the circumstances,” base a
8 credibility finding on an asylum applicant’s demeanor, the
9 plausibility of his account, and inconsistencies in his
10 statements, “without regard to whether” they go “to the
11 heart of the applicant’s claim.” 8 U.S.C.
12 § 1158(b)(1)(B)(iii). We “defer therefore to [the agency’s]
13 credibility determination unless, from the totality of the
14 circumstances, it is plain that no reasonable fact-finder
15 could make such an adverse credibility ruling.” Xiu Xia Lin
16 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
17 The agency reasonably based its adverse credibility
18 determination on the inconsistencies between Dong’s airport
19 interview and the contradictory statements he made in his
20 asylum application and at his hearing. A comparison shows a
21 substantial discrepancy. Dong initially stated he fled
22 China because his girlfriend was forced to abort a
23 pregnancy, but he applied for asylum based on alleged past
3
1 persecution as a Falun Gong practitioner. On appeal, Dong
2 argues, for the first time, that the airport interview is
3 unreliable because the immigration officer “did nothing to
4 encourage [him] to elaborate or explain” after he stated
5 that he fled due to his girlfriend’s forced abortion.
6 However, this contention is both unexhausted because it was
7 not proffered below, see Lin Zhong v. U.S. Dep’t of Justice,
8 480 F.3d 104, 124 (2d Cir. 2007) (recognizing that issue
9 exhaustion is a mandatory, although not jurisdictional,
10 requirement), and unavailing, as it is highly unlikely that
11 further probing of Dong’s forced abortion claim would have
12 revealed a completely unrelated Falun Gong claim, cf. Majidi
13 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (holding that
14 the IJ is not required to accept even plausible explanations
15 unless a reasonable fact-finder would be compelled to do
16 so). Moreover, Dong’s present explanation is itself
17 inconsistent with his contention below that he never made
18 the forced abortion claim. The IJ therefore did not err in
19 relying on the airport interview. See Yun-Zui Guan v.
20 Gonzales, 432 F.3d 391, 396-98 (2d Cir. 2005) (per curiam).
21 Moreover, the agency reasonably determined that there
22 were additional inconsistencies relating to Dong’s alleged
23 past persecution as a Falun Gong practitioner. The
4
1 documentary evidence indicated that Dong was detained
2 because of his attendance at Falun Gong organization
3 activities, which differed from his testimony that his only
4 arrest was for leafletting on his own. Although Dong
5 explained that distributing leaflets was one such activity,
6 where competing inferences may be drawn from the evidence we
7 defer to the agency when, as here, “the deductions are not
8 illogical or implausible.” Siewe v. Gonzales, 480 F.3d 160,
9 167 (2d Cir. 2007) (internal quotation marks and citation
10 omitted).
11 Having called Dong’s credibility into question, the
12 agency reasonably determined that his failure to corroborate
13 his practice of Falun Gong in the United States further
14 undermined his claim. See 8 U.S.C. § 1158(b)(1)(B)(ii)
15 (providing that “[t]he testimony of the applicant may be
16 sufficient to sustain the applicant’s burden without
17 corroboration, but only if the applicant satisfies the trier
18 of fact that the applicant’s testimony is credible, is
19 persuasive, and refers to specific facts sufficient to
20 demonstrate that the applicant is a refugee” (emphasis
21 added)). “An applicant’s failure to corroborate [his]
22 testimony may bear on credibility, because the absence of
23 corroboration in general makes an applicant unable to
5
1 rehabilitate testimony that has already been called into
2 question.” See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
3 Cir. 2007) (per curiam). Dong argues on appeal that he
4 offered an adequate explanation for his failure to provide
5 witnesses: they either lacked status or “[did not] have
6 time” or could not offer probative testimony because they
7 did not practice Falun Gong. However, it was reasonable for
8 the IJ and the BIA to find that these explanations were
9 insufficient given that it would not have taken significant
10 time to prepare a written statement. See 8 U.S.C. §
11 1254(b)(4) (“No court shall reverse a determination made by
12 a trier of fact with respect to the availability of
13 corroborating evidence . . . [unless] a reasonable trier of
14 fact is compelled to conclude that such corroborating
15 evidence is unavailable.”).
16 The totality of the circumstances supports the adverse
17 credibility determination given the completely different
18 bases for asylum proffered at Dong’s initial interview and
19 in his testimony at the hearing, and his failure to
20 corroborate the Falun Gong claim proffered at the hearing.
21 Because all of Dong’s claims depend on the same factual
22 predicate, the adverse credibility determination is
6
1 dispositive of asylum, withholding of removal, and CAT
2 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
3 2006); Xue Hong Yang, 426 F.3d at 523.
4
5 For the foregoing reasons, the petition for review is
6 DENIED. The pending request for oral argument in this
7 petition is DENIED in accordance with Federal Rule of
8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
9 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
14
7