14-4281
Dong v. Lynch
BIA
Christensen, IJ
A205 078 669
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
19th day of April, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
WEI DONG,
Petitioner,
v. 14-4281
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
Attorney General; Shelley R. Goad,
Assistant Director; Kristen
Giuffreda Chapman, Trial Attorney,
Office of Immigration Litigation,
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 Wei Dong, a native and citizen of China, seeks
review of an October 16, 2014, decision of the BIA affirming
an April 24, 2013, decision of an Immigration Judge (“IJ”)
denying Dong’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In re
Wei Dong, No. A205 078 669 (B.I.A. Oct. 16, 2014), aff’g No.
A205 078 669 (Immig. Ct. N.Y. City Apr. 24, 2013). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have considered
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For asylum applications such as Dong’s, governed by the
REAL ID Act of 2005, the agency may, “[c]onsidering the totality
of the circumstances,” base a credibility finding on
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inconsistencies in an asylum applicant’s statements and
evidence, “without regard to whether” those inconsistencies go
“to the heart of the applicant’s claim,” so long as they
reasonably support an inference that the applicant is not
credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). An omission in an
applicant’s testimony or supporting documents is “functionally
equivalent” to an inconsistency and “can serve as a proper basis
for an adverse credibility determination.” Xiu Xia Lin, 534 F.3d
at 166 n.3. “We defer therefore to an IJ’s credibility
determination unless, from the totality of the circumstances,
it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.” Id. at 167.
Dong applied for asylum on the basis that he was twice
detained and abused in China on account of his Christian faith.
Substantial evidence supports the agency’s conclusion that Dong
was not credible based on discrepancies among his border
interview, credible fear interview, asylum application, and
testimony.
When asked during a border interview why he feared
persecution in China, Dong said that because he was not a member
of a political party he was unfairly fined; in his asylum
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application he stated that he feared persecution because he was
a Christian and had been detained twice. This contradiction
alone is sufficient support for the adverse credibility
determination because it calls into question whether Dong was
ever detained on account of his religion. See Xian Tuan Ye v.
Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006).
Dong’s descriptions of his detention were also
inconsistent and further call into question his claim. During
his credible fear interview, Dong stated that his second
detention lasted 15 days; his asylum application reflected he
was released after one week. When asked to explain this
discrepancy, Dong testified that he and the interpreter during
the credible fear interview had difficulty hearing one another.
Even if this explanation were credited, while it might explain
the differing accounts of the length of detention, it does not
explain why Dong did not mention detention or religion at all
during the border interview. Dong attempts to conflate the
border and credible fear interviews, suggesting that the
interpretation issues at the credible fear interview explained
why he did not mention his Christian faith during the border
interview. This does not explain the omission because the
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credible fear interview occurred a month after the border
interview.
Dong’s testimony further undermined his claim. On direct
examination, he stated that he had no problems with authorities
after his first detention. But he later contradicted himself
by testifying to a second detention. The agency was not required
to accept his explanation that he thought he was being asked
if he had a “face-to-face confrontation” with authorities. See
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Finally,
the IJ also reasonably relied on inconsistencies regarding
Dong’s work history: his asylum application reflected that he
stopped working in June 2011 but he testified that he left his
job when he left China in November 2011. See Xiu Xia Lin, 534
F.3d at 167.
Nor did the agency err in considering the border and
credible fear interviews. The agency was not required to
subpoena the immigration officers who conducted those
interviews. A party may request the issuance of a subpoena “upon
a satisfactory showing that the presence of the witness is
necessary for the determination of any material matter.” 8
U.S.C. § 1534(d)(1). Dong did not explain why the officers’
presence was necessary. Moreover, assuming Dong wished the
5
officers to testify to the accuracy of the interview records,
the records bore sufficient indicia of reliability. See Ming
Zhang v. Holder, 585 F.3d 715, 723-25 (2d Cir. 2009);
Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004).
Finally, the agency reasonably gave limited weight to the
unsworn letters from Dong’s father and friend because they were
from interested authors not subject to cross examination. See
Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 215 (B.I.A. 2010),
overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d
130, 133-38 (2d Cir. 2012); see also Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 342 (2d Cir. 2006).
The totality of the circumstances supports the adverse
credibility determination because the inconsistencies call
into question whether Dong suffered any harm on account of his
religion. Because the only evidence of a threat to Dong’s life
or freedom depended upon his credibility, the agency’s finding
that he was not credible necessarily precludes success on his
claims for asylum, withholding of removal, and CAT relief.
Paul v. Gonzales, 444 F.3d 148, 156-57 (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,
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and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for 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
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