He v. Sessions

16-4074 He v. Sessions BIA Sichel, IJ A200 748 061 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 12th day of July, two thousand eighteen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 REENA RAGGI, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 XIANG JIAN HE, 14 Petitioner, 15 16 v. 16-4074 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Farah Loftus, Law Office of Farah 24 Loftus, Los Angeles, CA. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Nancy Friedman, 28 Senior Litigation Counsel; 29 Virginia Lum, Attorney, Office of 30 Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Xiang Jian He, a native and citizen of the 9 People’s Republic of China, seeks review of a November 17, 10 2016 decision of the BIA affirming a January 22, 2016 decision 11 of an Immigration Judge (“IJ”) denying He’s application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture (“CAT”). In re Xiang Jian He, No. 14 A 200 748 061 (B.I.A. Nov. 17, 2016), aff’g No. A 200 748 061 15 (Immig. Ct. N.Y. City Jan. 22, 2016). We assume the parties’ 16 familiarity with the underlying facts and procedural history 17 in this case. 18 Under the circumstances of this case, we review both 19 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432 20 F.3d 391, 394 (2d Cir. 2005). We review the agency’s 21 adverse credibility determination to assess whether it is 22 supported by substantial evidence. 8 U.S.C. 23 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165- 24 66 (2d Cir. 2008). The agency may, “[c]onsidering the 2 1 totality of the circumstances,” base an adverse credibility 2 determination on discrepancies between an applicant’s and a 3 witness’s testimony, as well as on internal inconsistencies 4 in an applicant’s testimony. 8 U.S.C. § 1158(b)(1)(B)(iii); 5 Xiu Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s 6 credibility determination unless . . . it is plain that no 7 reasonable fact-finder could make such an adverse 8 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. On 9 review of the record, we conclude that substantial evidence 10 supports the agency’s adverse credibility finding, as 11 inconsistencies called into question He’s account of his 12 practice of Christianity as well as of relevant past 13 events. 14 First, the agency reasonably relied on an inconsistency 15 in the testimony presented regarding the place of He’s 16 baptism. 8 U.S.C. § 1158(b)(1)(B)(iii). He asserted that 17 the baptism took place in China in 2008, whereas his pastor 18 in New York testified to having baptized He in December 19 2013 in New York and averred that he would not have 20 baptized someone who had previously been baptized. Although 21 He argues otherwise, this was not a minor inconsistency. 22 The significance of the circumstances of He’s baptism is 3 1 underscored by He’s statement that he did not consider 2 himself a “real Christian” until his baptism in 2008. This 3 inconsistency undermined He’s overall credibility with 4 respect to his statements about his Christianity. See Siewe 5 v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single 6 false document or a single instance of false testimony may 7 (if attributable to the petitioner) infect the balance of 8 the alien’s uncorroborated or unauthenticated evidence.”). 9 He has not offered any explanation for the discrepancy. 10 Second, He and his cousin gave conflicting testimony 11 about whether the two attended church together in New York. 12 This conflict further undermined He’s claim to be a 13 practicing Christian. 8 U.S.C. § 1158(b)(1)(B)(iii). He 14 initially testified that they never attended church 15 together, and confirmed his testimonial statement several 16 times. After He’s cousin testified that they attended 17 church together, however, He changed his testimony. He has 18 not provided a compelling explanation for the inconsistency 19 in his testimony. See Majidi v. Gonzales, 430 F.3d 77, 80 20 (2d Cir. 2005) (“A petitioner must do more than offer a 21 plausible explanation for his inconsistent statements to 22 secure relief; he must demonstrate that a reasonable fact- 4 1 finder would be compelled to credit his testimony.” 2 (quotation marks omitted)). 3 Third, in his adverse credibility finding, the IJ 4 reasonably relied on the inconsistent statements made by He 5 about injuries he allegedly incurred as a result of a 2007 6 detention and beating in China. He’s application mentioned 7 the detention and beating, but did not describe any such 8 injuries. On cross-examination, He affirmed that the 9 beating caused internal injuries and broken bones; but on 10 redirect, He clarified that he suffered only cuts and 11 bruises. This inconsistency relates directly to He’s 12 allegation of past persecution and calls into question the 13 entirety of his claim that he was arrested and beaten for 14 attending an underground church. 8 U.S.C. 15 § 1158(b)(1)(B)(iii); cf. Xian Tuan Ye v. Dep’t of Homeland 16 Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“[A] material 17 inconsistency in an aspect of [an applicant’s] story that 18 served as an example of the very persecution from which he 19 sought asylum . . . afforded substantial evidence to 20 support the adverse credibility finding.”). 21 Considering these discrepancies relating to He’s 22 baptism, church attendance, and injuries, in the totality of 5 1 the circumstances presented, we conclude that substantial 2 evidence supports the agency’s ruling. Siewe, 480 F.3d at 3 170; Xiu Xia Lin, 534 F.3d at 166-67. Because He’s claims 4 were all based on the same factual predicate, the adverse 5 credibility determination is dispositive of asylum, 6 withholding of removal, and CAT relief. Paul v. Gonzales, 444 7 F.3d 148, 156-57 (2d Cir. 2006). 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, 18 Clerk of Court 6