15-2787
Jiang v. Boente
BIA
Nelson, IJ
A087 794 867
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 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 3rd day of February, two thousand seventeen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _____________________________________
13
14 NAI WU JIANG,
15 Petitioner,
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17 v. 15-2787
18 NAC
19 DANA J. BOENTE, ACTING UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.*
22 _____________________________________
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* The Clerk of Court is respectfully requested to amend the
caption to conform to the above.
1 FOR PETITIONER: Gary J. Yerman, New York, NY.
2
3 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
4 Assistant Attorney General; Cindy S.
5 Ferrier, Assistant Director;
6 Michele Y.F. Sarko, Trial Attorney,
7 Office of Immigration Litigation,
8 United States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review is
14 DENIED.
15 Petitioner Nai Wu Jiang, a native and citizen of the
16 People’s Republic of China, seeks review of an August 17, 2015,
17 decision of the BIA affirming a December 4, 2013, decision of
18 an Immigration Judge (“IJ”) denying Jiang’s application for
19 asylum, withholding of removal, and relief under the Convention
20 Against Torture (“CAT”), and concluding that he knowingly made
21 a frivolous application for asylum. In re Nai Wu Jiang, No.
22 A087 794 867 (B.I.A. Aug. 17, 2015), aff’g No. A087 794 867
23 (Immig. Ct. N.Y. City Dec. 4, 2013). We assume the parties’
24 familiarity with the underlying facts and procedural history
25 in this case.
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1 We have reviewed the IJ’s decision as modified by the BIA.
2 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
3 (2d Cir. 2005). Accordingly, we do not address the IJ’s
4 suggestion that Jiang’s asylum claim might have been untimely,
5 because the BIA declined to affirm that finding. Id. As to
6 the agency’s adverse credibility and frivolousness
7 determinations, the applicable standards of review are well
8 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
9 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
10 I. The Adverse Credibility Determination
11 Because a frivolousness finding is only “effective as of
12 the date of a final determination,” 8 U.S.C. § 1158(d)(6), we
13 first consider the denial of relief on the merits. Under the
14 REAL ID Act, an IJ may, “[c]onsidering the totality of the
15 circumstances . . . base a credibility determination on”
16 inconsistencies in an applicant’s statements and other record
17 evidence “without regard to whether” they go “to the heart of
18 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
19 Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008). Here,
20 substantial evidence supports the adverse credibility
21 determination.
3
1 The IJ reasonably relied on Jiang’s admission that he
2 fabricated his initial application to find not credible Jiang’s
3 testimony regarding his practice of Christianity in the United
4 States. “[A] single false document or a single instance of
5 false testimony may (if attributable to the petitioner) infect
6 the balance of the alien’s uncorroborated or unauthenticated
7 evidence,” justifying the “application of the maxim falsus in
8 uno, falsus in omnibus [false in one thing, false in
9 everything].” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
10 2007). Moreover, the IJ reasonably found Jiang’s claim
11 regarding his Christian religious practice not to be credible,
12 in light of Jiang’s failure to provide robust corroboration of
13 his practice of Christianity (excepting a letter from a church
14 in New York). See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
15 Cir. 2007). Consequently, the “totality of the circumstances”
16 supports the adverse credibility determination. 8 U.S.C.
17 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. That
18 determination is dispositive of asylum, withholding of removal,
19 and CAT relief, as all three claims depended on Jiang’s
20 credibility as to his Christianity. See Paul v. Gonzales, 444
21 F.3d 148, 156 (2d Cir. 2006).
4
1 II. Frivolousness Finding
2 In making a frivolousness determination, an IJ must
3 (1) give “‘notice to the alien of the consequences of filing
4 a frivolous application’”; (2) make “‘a specific finding . .
5 . that the alien knowingly filed a frivolous application’”;
6 (3) identify “‘sufficient evidence in the record to support the
7 finding that a material element of the asylum application was
8 deliberately fabricated’”; and (4) allow the alien “‘sufficient
9 opportunity to account for any discrepancies or implausible
10 aspects of the claim.’” Mei Juan Zheng v. Mukasey, 514 F.3d
11 176, 180 (2d Cir. 2008) (quoting Matter of Y-L-, 24 I. & N. Dec.
12 151, 155 (BIA 2007)). A “written warning contained in [an]
13 asylum application” can provide sufficient notice of the
14 consequences of filing a frivolous application. Gade Niang v.
15 Holder, 762 F.3d 251, 254 (2d Cir. 2014). A frivolousness
16 finding must be supported by a preponderance of the evidence.
17 Matter of Y-L-, 24 I. & N. Dec. at 157.
18 Jiang does not dispute that “material elements” of his
19 original application were “deliberately fabricated,” or that
20 he received “sufficient opportunity to account for any
21 discrepancies or implausible aspects” of his asylum claim. Mei
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1 Juan Zheng, 514 F.3d at 180 (internal quotation marks omitted).
2 Instead, he argues that Gade Niang does not apply because, in
3 that case, the petitioner did not dispute that he received and
4 understood the warnings on his application, whereas Jiang
5 testified that those warnings were never translated for him.
6 Gade Niang, 762 F.3d at 254 n.1.
7 As discussed above, the agency’s credibility determination
8 is supported by substantial evidence. Given this finding on
9 credibility, the IJ was not required to credit Jiang’s testimony
10 that he did not receive notice. See Siewe, 480 F.3d at 170.
11 Moreover, the record includes sufficient evidence of notice,
12 including signed statements in English and Chinese confirming
13 that the contents of his application were true and that he would
14 be forever barred from receiving immigration benefits if he
15 knowingly filed a frivolous asylum application. The contents
16 of the notice to Jiang were sufficient. See 8 U.S.C.
17 §§ 1158(d)(4)(A), (6).
18 Although Jiang argues that he filed the false application
19 under the influence of his previous attorney, this point does
20 not change the fact that Jiang knowingly submitted a fabricated
21 application and testified to the contents of that application
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1 at his asylum interview. Accordingly, Jiang received adequate
2 notice, and we see no basis to disturb the agency’s conclusion
3 that Jiang knowingly submitted a frivolous application. See
4 8 U.S.C. §§ 1158(d)(4)(A), (6); Mei Juan Zheng, 514 F.3d at 180.
5 Further, the frivolousness finding bars Jiang from receiving
6 any immigration benefits arising from his marriage to a U.S.
7 citizen. See 8 U.S.C. § 1158(d)(6).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
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