Xing Feng Dong v. Sessions

16-2257 Dong v. Sessions BIA Van Wyke, IJ A087 651 012 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 8th day of September, two thousand seventeen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 DEBRA ANN LIVINGSTON, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 XING FENG DONG, 14 Petitioner, 15 16 v. 16-2257 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: John Chang, New York, NY. 24 25 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 26 Attorney General, Mary Jane Candaux, 27 Assistant Director, Matthew A. 28 Connelly, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 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 Xing Feng Dong, a native and citizen of the 6 People’s Republic of China, seeks review of a June 23, 2016 7 decision of the BIA affirming a July 16, 2014 decision of an 8 Immigration Judge (“IJ”) denying Dong’s application for asylum, 9 withholding of removal, and relief under the Convention Against 10 Torture (“CAT”). In re Xing Feng Dong, No. A087 651 012 (B.I.A. 11 June 23, 2016), aff’g No. A087 651 012 (Immig. Ct. N.Y.C. July 12 16, 2014). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 Under the circumstances of this case, we review both the 15 BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432 16 F.3d 391, 394 (2d Cir. 2005). The “substantial evidence” 17 standard of review applies to the IJ’s factual findings, and 18 we review questions of law de novo. See 8 U.S.C. § 1252(b)(4); 19 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 20 The agency may, “[c]onsidering the totality of the 21 circumstances,” base a credibility finding on an asylum 22 applicant’s “demeanor, candor, or responsiveness,” the 2 1 plausibility of his account, and inconsistencies in his 2 statements and other record evidence “without regard to 3 whether” those inconsistencies go “to the heart of the 4 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin 5 v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per curiam). 6 “A petitioner must do more than offer a plausible explanation 7 for his inconsistent statements to secure relief; he must 8 demonstrate that a reasonable fact-finder would be compelled 9 to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 10 (2d Cir. 2005) (internal quotation marks and citations 11 omitted). 12 Substantial evidence supports the agency’s determination 13 here that Dong was not credible. The agency reasonably relied 14 on inconsistencies between Dong’s testimony and the testimony 15 of his witness, Fang Lin. Dong testified that he was fired from 16 his job as a barber in 2008 after his arrest and detention for 17 practicing Falun Gong. Lin testified, however, that she had her 18 hair cut by Dong in 2009, and saw him several times that year, 19 at the same store where he cut her hair in 2007. Dong contends 20 that the agency should not have relied on Lin’s testimony 21 because she was confused and very nervous, but the IJ determined 22 that Lin was credible, and because he had the “unique advantage” 3 1 of having heard directly from the witnesses on the stand, his 2 credibility determinations are afforded “particular 3 deference.” Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73 (2d Cir. 4 2004), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t 5 of Justice, 494 F.3d 296 (2d Cir. 2007). Accordingly, as the 6 agency found, this inconsistency called into question both 7 whether Dong lost his job and whether the event leading to his 8 firing—his arrest for Falun Gong—actually occurred. See Siewe 9 v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (holding that “a 10 single instance of false testimony may . . . infect the balance 11 of the alien’s uncorroborated or unauthenticated evidence”). 12 The agency also reasonably relied in its adverse 13 credibility finding on parts of Dong’s testimony that were 14 implausible and incoherent. For example, Dong testified that 15 he did not know how many times the police had been to his parents’ 16 house looking for him since he left China, or whether his parents 17 had told the police of his whereabouts, even though he testified 18 that he talks with his parents on the phone and these matters 19 should have been important to him, given his history with the 20 police and concern for his parents’ safety. The agency 21 reasonably found that Dong’s testimony on these points was vague 22 and evasive. Zhou Yun Zhang, 386 F.3d at 73 (affording 4 1 particular deference to the IJ because he is able to “assess[] 2 testimony together with witness demeanor”). 3 Dong also testified that he wanted his parents to tell the 4 police that he was in the United States because that might make 5 the police stop their visits. But when asked why he did not tell 6 them to do so, he said that he did not want to harm his parents. 7 The agency reasonably found that this testimony “borders on the 8 incoherent.” See id. at 74 (holding deference is due to findings 9 based on “inconsistent statements” or “inherently improbable 10 testimony”). 11 The agency also relied on Dong’s failure to corroborate his 12 continuing practice of Falun Gong. “An applicant’s failure to 13 corroborate his or her testimony may bear on credibility, 14 because the absence of corroboration in general makes an 15 applicant unable to rehabilitate testimony that has already 16 been called into question.” Biao Yang v. Gonzales, 496 F.3d 268, 17 273 (2d Cir. 2007) (per curiam). Dong testified that he resumed 18 his practice of Falun Gong in the United States and that he 19 sometimes practiced in a park with “many” other people. He 20 testified that the best person to corroborate his practice of 21 Falun Gong in the United States would be his wife, but in her 22 affidavit, his wife declared that she herself was not a 5 1 practitioner of Falun Gong. The agency therefore reasonably 2 inferred that she would not be able to discern whether Dong’s 3 practice of Falun Gong was genuine. See Siewe, 480 F.3d at 168-69 4 (affording deference to the agency’s inference so long as it 5 is “tethered to the evidentiary record”); Xiao Ji Chen v. U.S. 6 Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006) (noting 7 that weight afforded to the applicant’s evidence in immigration 8 proceedings lies largely within agency discretion). Because 9 Dong’s testimony was not otherwise credible, the agency 10 reasonably relied on his failure to present any witness from 11 the park to corroborate his Falun Gong practice in rejecting 12 his claim. Biao Yang, 496 F.3d at 273. 13 Dong contends that the inconsistencies and omissions 14 relied on by the agency do not go to the heart of his claim. 15 But the testimonial inconsistencies regarding Dong’s loss of 16 his job do go to the heart of his claim: they relate to a central 17 alleged consequence of Dong’s purported practice of Falun Gong 18 in China. Moreover, the agency is allowed to rely on 19 inconsistencies and omissions that “do not directly relate to 20 the applicant’s claim of persecution.” Xiu Xia Lin, 534 F.3d 21 at 164. 6 1 Given the inconsistency findings and the lack of 2 corroboration where one would expect to find it, substantial 3 evidence supports the agency’s adverse credibility 4 determination. See id. at 165-66. The adverse credibility 5 determination is dispositive of asylum, withholding of removal, 6 and CAT relief because all three claims are based on the same 7 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 8 (2d Cir. 2006). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of removal 11 that the Court previously granted in this petition is VACATED, 12 and any pending motion for a stay of removal in this petition 13 is DISMISSED as moot. Any pending request for oral argument in 14 this petition is DENIED in accordance with Federal Rule of 15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 16 34.1(b). 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 7