15-4038
Yang v. Sessions
BIA
Poczter, IJ
A201 295 499
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 4th day of May, two thousand seventeen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 WEN CAI YANG,
15 Petitioner,
16
17 v. 15-4038
18 NAC
19 JEFFERSON B. SESSIONS, III, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: James A. Lombardi, New York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Shelley
28 R. Goad, Assistant Director; Kristen
29 Giuffreda Chapman, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Wen Cai Yang, a native and citizen of the
6 People’s Republic of China, seeks review of a December 3, 2015,
7 decision of the BIA affirming an August 14, 2014, decision of
8 an Immigration Judge (“IJ”) denying Yang’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Wen Cai Yang, No. A201 295 499
11 (B.I.A. Dec. 3, 2015), aff’g No. A201 295 499 (Immig. Ct. N.Y.
12 City Aug. 14, 2014). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales, 432
16 F.3d 391, 394 (2d Cir. 2005). The standards of review are well
17 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
18 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
19 “[c]onsidering the totality of the circumstances,” base an
20 adverse credibility determination on an applicant’s “demeanor,
21 candor, or responsiveness,” internally inconsistent testimony,
22 discrepancies between an applicant’s oral and written
23 statements, and discrepancies between an applicant’s testimony
2
1 and other record evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
2 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
3 credibility determination unless . . . it is plain that no
4 reasonable fact-finder could make such an adverse credibility
5 ruling.” Xiu Xia Lin, 534 F.3d at 167. As discussed below,
6 substantial evidence supports the agency’s determination that
7 Yang was not credible.
8 First, the agency reasonably relied on an omission from
9 Yang’s asylum application regarding whether the police visited
10 his parents after he left China. Xiu Xia Lin, 534 F.3d at 166
11 n.3 (observing that “[a]n inconsistency and an omission are
12 . . . functionally equivalent” for credibility purposes).
13 Yang testified for the first time on cross-examination that the
14 police visited his parents in April 2011 and ransacked their
15 home when they would not reveal his location. When asked why
16 he did not include this incident in his asylum application or
17 written statement (completed in April 2012), Yang was
18 nonresponsive, stating only that his parents reported this
19 information over the telephone. Yang now argues that the
20 omission should be excused because he is uneducated and did not
21 know what to include in his asylum application. This
22 explanation is not compelling, however, because Yang prepared
23 his asylum application with the assistance of counsel. See
3
1 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A
2 petitioner ‘must do more than offer a “plausible” explanation
3 for his inconsistent statements to secure relief; “he must
4 demonstrate that a reasonable fact-finder would be compelled
5 to credit his testimony.”’” (quoting Zhou Yun Zhang v. U.S. INS,
6 386 F.3d 66, 76 (2d Cir. 2004))).
7 Yang also testified inconsistently about whether his
8 parents received and kept a summons from the Chinese police:
9 He initially stated that the police took the summons with them,
10 but on further questioning stated that the police gave the
11 summons to his parents and that his parents did not know where
12 they put it. Taken together, these are material
13 inconsistencies that call into question the basis for Yang’s
14 fear of future harm in China. Xian Tuan Ye v. Dep’t of Homeland
15 Sec., 446 F.3d 289, 295 (2d Cir. 2006) (even one material
16 inconsistency may provide substantial evidence for an adverse
17 credibility determination).
18 Third, Yang’s testimony that he read the Bible once every
19 two weeks or once a month while in China contradicted his
20 credible fear interview, in which he stated that he had never
21 read the Bible. This discrepancy regarding Yang’s religious
22 practice in China is further support for the adverse credibility
23 determination. Xiu Xia Lin, 534 F.3d at 167. Yang now argues
4
1 that the agency placed too much weight on this inconsistency
2 because his credible fear interview was not reliable. This
3 argument lacks merit. The IJ reasonably concluded that the
4 credible fear interview record is reliable under the criteria
5 in Ming Zhang v. Holder, 585 F.3d 715 (2d Cir. 2009). The
6 questions and answers are typewritten and appear to reflect a
7 verbatim or nearly verbatim account of the questions posed and
8 Yang’s answers; a Mandarin interpreter was used for the
9 interview; Yang indicated that he understood the interpreter
10 and the questions asked; the record contains no signs of
11 coercion; and the questions asked appear designed to elicit the
12 details of Yang’s asylum claim (for example, the officer asked
13 Yang follow-up questions regarding his alleged arrest and
14 detention and his religious beliefs). Ming Zhang, 585 F.3d at
15 725-26. And the IJ was not required to accept Yang’s
16 explanation that he was confused during the credible fear
17 interview, given his apparently clear answers to the questions.
18 Majidi, 430 F.3d at 80-81.
19 The agency’s demeanor finding adds further support to the
20 overall adverse credibility determination. Particularly on
21 cross-examination, Yang took long pauses and was not responsive
22 to questions about why he obtained a passport in 2009 and why
23 he did not get a letter from his parents, even after the IJ and
5
1 the Government’s attorney drew attention to his lack of
2 responsiveness. Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d Cir.
3 2007) (giving “particular deference” to IJ’s finding that
4 testimony was evasive and nonresponsive).
5 The agency also reasonably concluded that Yang’s
6 corroborating evidence was insufficient to rehabilitate his
7 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
8 Cir. 2007) (“An applicant’s failure to corroborate his . . .
9 testimony may bear on credibility, because the absence of
10 corroboration in general makes an applicant unable to
11 rehabilitate testimony that has already been called into
12 question.”). In particular, as the agency found, Yang did not
13 submit a letter from his parents to corroborate the April 2011
14 police visit, and he was nonresponsive when asked to explain
15 that omission. Yang argues that the letters he submitted from
16 his aunt and a church friend in China were sufficient. However,
17 these letters do not mention the police visit and thus cannot
18 rehabilitate his problematic testimony on this issue.
19 Given the discrepancies relating to Yang’s religious
20 practice and the basis for Yang’s fear of future harm, as well
21 as Yang’s evasive demeanor and lack of rehabilitative
22 corroborating evidence, the totality of the circumstances
23 supports the agency’s ruling. Xiu Xia Lin, 534 F.3d at 167.
6
1 Because Yang’s claims were all based on the same factual
2 predicate, the adverse credibility determination is
3 dispositive of asylum, withholding of removal, and CAT relief.
4 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
7