14-4754
Yang v. Lynch
BIA
Zagzoug, IJ
A205 226 268
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
12th day of May, two thousand sixteen.
PRESENT:
JOHN M. WALKER, JR.,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
JIANAN YANG,
Petitioner,
v. 14-4754
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, Law Offices of Michael
Brown, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Cindy S.
Ferrier, Assistant Director;
Kimberly A. Burdge, 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 Jianan Yang, a native and citizen of the
People’s Republic of China, seeks review of a December 17, 2014,
decision of the BIA affirming a September 10, 2013, decision
of an Immigration Judge (“IJ”) denying Yang’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Jianan Yang, No. A205 226 268
(B.I.A. Dec. 17, 2014), aff’g No. A205 226 268 (Immig. Ct. N.Y.
City Sept. 10, 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. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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The agency may base a credibility finding on an asylum
applicant’s demeanor and inconsistencies between his
statements and other evidence, “without regard to whether” they
go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
163-64 (2d Cir. 2008) (per curiam). “We defer . . . 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.” Xiu Xia Lin, 534 F.3d
at 167.
Here, substantial evidence supports the IJ’s adverse
credibility determination. The IJ reasonably relied on
inconsistencies among Yang’s testimony, asylum application,
and documentary evidence. For instance, Yang testified that
he was one of five people arrested when police officers came
to his church in China, and that four others escaped. However,
his asylum application stated that all nine people at the church
were arrested. Yang’s explanation that he forgot and was
telling the truth would not compel a reasonable fact-finder to
credit his testimony, as it does not explain the discrepancy.
See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
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Yang also stated that he had no visitors while he was in
custody, but a letter he submitted from a friend contradicts
that claim. Yang’s explanation that the friend may have
visited Yang while he was recuperating at home is not compelling
because the letter clearly states that the author witnessed Yang
in police custody. See id. Further, although Yang testified
that he was unfamiliar with the Methodist church, a letter from
his mother stated that he attended a Methodist church in the
United States.
The IJ also found that Yang appeared to testify from a
memorized script. This is a demeanor finding, which is
“paradigmatically the sort of evidence that a fact-finder is
best positioned to evaluate.” Li Zu Guan v. INS, 453 F.3d 129,
140 (2d Cir. 2006). The record supports this finding, as Yang’s
only instance of nonresponsive testimony during direct
examination occurred when the IJ interrupted to ask a question
about Yang’s passport, and Yang suddenly became hesitant and
vague on cross-examination. The demeanor finding is further
bolstered by the inconsistencies discussed above. See Li Hua
Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
4
Yang argues that the credibility finding was unreasonable
because it is not logical for an applicant to memorize testimony
inconsistent with his application. This argument is without
merit, as the IJ clearly found that Yang’s testimony on direct
examination was seemingly memorized, while his testimony on
cross-examination contained the important inconsistencies.
Finally, the IJ reasonably relied on Yang’s failure to
provide certain corroborating evidence to bolster her finding
that Yang was not credible. Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007). Yang failed to provide evidence
corroborating his assertion that he received medical treatment
after his detention, and further failed to corroborate his
alleged practice of Christianity in the United States. See
Chuilu Liu v. Holder, 575 F.3d 193, 198-99 (2d Cir. 2009).
Given the IJ’s findings regarding Yang’s demeanor and the
inconsistency in and the lack of corroboration of his testimony,
substantial evidence supports the agency’s adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167. As his claims for asylum, withholding
of removal, and CAT relief are all based on the same factual
predicates, the credibility determination is dispositive of his
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petition. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
2006). We do not address the agency’s alternative
determination that Yang had not established that his asylum
application was timely filed. See INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (“As a general rule courts and agencies are not
required to make findings on issues the decision of which is
unnecessary to the results they reach.”).
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.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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