15-1805
Dong v. Yates
BIA
Christensen, IJ
A072 475 138
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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 Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 23rd day of January , two thousand seventeen.
5
6 PRESENT:
7 REENA RAGGI,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIE-TAN DONG, AKA EDGAR GONZALEZ,
14 Petitioner,
15
16 v. 15-1805
17 NAC
18 SALLY Q. YATES, ACTING UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent*.
21 _____________________________________
22
23
24 FOR PETITIONER: WaiSim M. Cheung, New York, NY.
25
26
* Pursuantto Federal Rule of Appellate Procedure 43(c)(2),
Acting Attorney General Sally Q. Yates is automatically
substituted for former Attorney General Loretta E. Lynch as
Respondent.
1 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
2 Assistant Attorney General; Stephen
3 J. Flynn, Assistant Director; Lynda
4 A. Do, Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a Board
9 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
10 ADJUDGED, AND DECREED that the petition for review is DENIED.
11 Petitioner Jie-Tan Dong, a native and citizen of the
12 People’s Republic of China, seeks review of a May 8, 2015 decision
13 of the BIA, affirming a March 20, 2013 decision of an Immigration
14 Judge (“IJ”) denying asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Jie-Tan
16 Dong, No. A072 475 138 (B.I.A. May 8, 2015), aff’g No. A072 475
17 138 (Immig. Ct. N.Y. City Mar. 20, 2013). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we review both the
21 BIA’s and IJ’s decisions “for the sake of completeness.”
22 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
23 2006). The applicable standards of review are well established.
24 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
25 165-66 (2d Cir. 2008).
26
2
1 Adverse Credibility Determination
2 The agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility finding on an asylum
4 applicant’s “demeanor, candor, or responsiveness,” the
5 plausibility of his account, and inconsistencies in his
6 statements and other record evidence “without regard to whether”
7 those inconsistencies go “to the heart of the applicant’s claim.”
8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
9 “We defer . . . to an IJ’s credibility determination unless .
10 . . it is plain that no reasonable fact-finder could make such
11 an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
12 “A petitioner must do more than offer a plausible explanation
13 for his inconsistent statements to secure relief; he must
14 demonstrate that a reasonable fact-finder would be compelled
15 to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77, 80
16 (2d Cir. 2005) (emphasis in original) (internal quotation marks
17 omitted).
18 Substantial evidence supports the agency’s determination
19 that Dong was not credible. Dong conceded that his 1993
20 application was false and incorporated that application into
21 his 2011 application. See Siewe v. Gonzales, 480 F.3d 160, 170
22 (2d Cir. 2007) (“[A] single false document or a single instance
3
1 of false testimony may (if attributable to the petitioner) infect
2 the balance of the alien’s uncorroborated or unauthenticated
3 evidence.”). Additionally, Dong admitted to using a false
4 Venezuelan passport to enter the United States in 1993. We have
5 held that “[t]he presentation of fraudulent documents that were
6 created to escape persecution may actually tend to support an
7 alien’s application” and generally may not be used to undermine
8 credibility. Id. at 170 (emphasis omitted). That is not Dong’s
9 situation, however, because he disavowed his 1993 asylum claim
10 and was therefore not fleeing persecution.
11 Further, the agency reasonably relied on inconsistencies
12 between Dong’s testimony and the testimony and statement from
13 the witness he called to corroborate his religious practice in
14 the United States. 8 U.S.C. § 1158(b)(1)(B)(iii). Dong and the
15 witness were inconsistent as to how long they had known each
16 other and whether they were acquainted when Dong was baptized.
17 The agency was not required to accept Dong’s explanation, which
18 did not fully explain the discrepancies. See Majidi, 430 F.3d
19 at 80.
20 Given Dong’s incorporation of his admittedly false 1993
21 asylum application into his 2011 application, his use of a false
22 passport, and these inconsistencies related to the religious
4
1 practice that formed the basis of his asylum claim, the agency’s
2 credibility determination is supported by substantial evidence.
3 See Xiu Xia Lin, 534 F.3d at 165-66. That determination is
4 dispositive of his claims for asylum, withholding of removal,
5 and CAT relief because all three claims rest on the same factual
6 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
7 2006). Accordingly, we need not reach the agency’s alternative
8 burden finding. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
9 (“As a general rule courts and agencies are not required to make
10 findings on issues the decision of which is unnecessary to the
11 results they reach.”).
12 Frivolous Asylum Application
13 If the agency determines that an alien has knowingly filed
14 a frivolous application for asylum, the alien is permanently
15 ineligible for any immigration benefits, save withholding of
16 removal and CAT relief. 8 U.S.C. § 1158(d)(6); 8 C.F.R.
17 § 1208.20. In making such a finding, an IJ must (1) give the
18 alien notice of the consequences of filing a frivolous
19 application; (2) make a specific finding that the alien knowingly
20 filed a frivolous application; (3) identify sufficient evidence
21 in the record to support the finding that a “material element[]”
22 of the asylum application was “deliberately fabricated”; and
5
1 (4) allow the alien “sufficient opportunity to account for any
2 discrepancies or implausible aspects of the claim.” 8 C.F.R.
3 § 1208.20; Matter of Y-L, 24 I. & N. Dec. 151, 155 (BIA 2007).
4 Dong argues that the agency’s finding that he filed a
5 frivolous application violated due process because he withdrew
6 his 1993 application in 1998 and disavowed the application at
7 his hearing before he received the frivolous finding warning
8 and before he signed his 2011 application under oath. He argues
9 that this chronology proves that his disavowal of his 1993
10 application was also “meant to retract and recant the . . .
11 one-line reference to the 1993 application” that appeared in
12 his 2011 application and that the reference was merely a mistake.
13 Dong stresses that he did not submit the 1993 application as
14 evidence, but that it “appears to be the IJ’s own sua sponte
15 incorporation.”
16 As an initial matter, the 1993 application was admissible
17 because it was reliable evidence of his actions. See Felzcerek
18 v. INS, 75 F.3d 112, 115 (2d Cir. 1996) (“The due process test
19 for admissibility of evidence in a deportation hearing is whether
20 the evidence is probative and whether its use is fundamentally
21 fair. . . . [F]airness is closely related to the reliability
22 and trustworthiness of the evidence.”). Dong did not dispute
6
1 that the application was the one that he filed in 1993 and
2 withdrew in 1998.
3 Dong’s argument that the timing of the frivolous finding
4 warning violated due process is belied by the record. The IJ
5 acknowledged that Dong filed (and withdrew) his 1993 application
6 before Dong received any frivolous filing warnings and concluded
7 that it could not make a frivolous filing finding regarding that
8 application. The IJ gave Dong the frivolous filing warning
9 regarding Dong’s 2011 application, however, and Dong swore
10 thereafter “that the contents . . . and each of the supporting
11 documents that [he] submitted are true and correct to the best
12 of [his] knowledge.” Dong then signed the application, which
13 incorporated the 1993 application as evidence of his past harm.
14 Dong’s statement that he was “not going to pursue [the 1993]
15 application” did not constitute an explicit renunciation of its
16 incorporation into the 2011 application and he failed to modify
17 his 2011 application either before or after he received the
18 frivolous filing warning.
19 Dong’s own testimony further undermines his claim that he
20 recanted the 2011 application’s incorporation of the 1993
21 application or that the incorporation was merely a mistake. At
22 the hearing, when asked why the Chinese government would
7
1 persecute him, his initial response was to refer to his
2 “student[] movement activities,” mentioned in his 1993 asylum
3 application. This reference to his family’s alleged opposition
4 to the Chinese government’s reaction to the student-led protests
5 at Tiananmen Square supports the IJ’s conclusion that Dong
6 intended to incorporate his fabricated 1993 asylum claim into
7 his 2011 application. It was only after a brief recess during
8 the hearing that Dong testified, in conformity with his 2011
9 application, that he feared religious persecution. Given
10 Dong’s subsequent concession that his 1993 application was a
11 complete fabrication, his reliance on it in his 2011 application
12 and at the hearing supports the finding that he filed a frivolous
13 application.
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of removal
16 that the Court previously granted in this petition is VACATED,
17 and any pending motion for a stay of removal in this petition
18 is DISMISSED as moot. Any pending request for oral argument in
19 this petition is DENIED in accordance with Federal Rule of
20 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
21 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
8