17-1025
Jing v. Barr
BIA
Poczter, IJ
A206 722 634
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 7th day of March, two thousand nineteen.
PRESENT:
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges,
MARGO K. BRODIE,
District Judge.*
_____________________________________
XINGYU JING, AKA XIANG YU JIANG,
Petitioner,
v. 17-1025
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: MONA LIZA F. LAO, New York, NY.
FOR RESPONDENT: TRACIE N. JONES, Trial Attorney;
Chad A. Readler, Acting Assistant
* Judge Margo K. Brodie, of the United States District Court for
the Eastern District of New York, sitting by designation.
Attorney General; Cindy S.
Ferrier, Assistant Director;
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Xingyu Jing (“Jing”), a native and citizen of
the People’s Republic of China, seeks review of a March 15,
2017 decision of the BIA affirming an August 3, 2016 decision
of an Immigration Judge (“IJ”) denying asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Xingyu Jing, No. A206 722 634 (B.I.A. Mar.
15, 2017), aff’g No. A206 722 634 (Immig. Ct. N.Y. City Aug.
3, 2016). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We have reviewed both the IJ’s and the BIA’s opinions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The
applicable standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
162, 165-66 (2d Cir. 2008).
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“Considering the totality of the circumstances, . . . a
trier of fact may base a credibility determination on . . .
the consistency between the applicant’s or witness’s written
and oral statements . . . , [and] the internal consistency of
each such statement . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii);
see also Xiu Xia Lin, 534 F.3d at 163-64. Substantial
evidence supports the agency’s determination that Jing was
not credible as to his claim that Chinese officials detained
and beat him on account of his practice of Christianity.
The agency reasonably relied on what it found to be
inconsistency between Jing’s accounts on direct and cross
examination of the nature and frequency of the police
mistreatment he experienced during and after detention by the
police following his arrest while participating in a service
at a “house church.” See 8 U.S.C. § 1158(b)(1)(B)(iii); see
also Xiu Xia Lin, 534 F.3d at 165-67. During Jing’s credible
fear interview and direct testimony and in his asylum
application and written statement, Jing mentioned that the
police required him to report to them every two weeks after
his release from detention. Asked on direct whether he had
“any problems after [his] release” from custody, Jing failed
to mention any further “problems” with the police,
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identifying only the fact that he lost his job because he was
arrested for attending an underground church.
On cross-examination, however, Jing testified to
additional incidents of police surveillance and mistreatment
after detention, including that the police ordered him to
attend anti-underground Christian church classes, that the
police slapped him once for refusing to attend the class, and
that officers came to his home nine to ten times, and
physically mistreated him during five or six of those visits.
The agency was not required to credit Jing’s explanations
that he omitted the information to be consistent with his
initial interview or that he did not think the incidents were
relevant. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005) (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (internal quotation marks
omitted)); see also Hong Fei Gao v. Sessions, 891 F.3d 67, 82
(2d Cir. 2018) (recognizing that the omission of a beating
from a corroborating letter that discussed other post-arrest
events is evidence relevant to a credibility finding).
While the agency may have placed too much weight on an
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additional omission of some minor medical treatment, see Hong
Fei Gao, 891 F.3d at 79-81, Jing’s testimony about the nature
and frequency of the police mistreatment he experienced after
release from custody was material to support the credibility
determination. Xian Tuan Ye v. Dep’t of Homeland Sec., 446
F.3d 289, 295 (2d Cir. 2006) (holding that where the BIA
relied on a material omission “in an aspect of [the] story
that served as an example of the very persecution from which
[the petitioner] sought asylum,” that such an omission
supported the adverse credibility finding).
Given the materiality of Jing’s omissions regarding
subsequent physical mistreatment by the police that detained
him, the apparent inconsistency of this omission with his
response to the question on direct about any problems he
experienced after his release, and his inability to provide
a sufficient explanation for his omissions, the adverse
credibility determination is supported by substantial
evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); Zhang v. Holder, 585
F.3d 715, 726 (2d Cir. 2009) (upholding adverse credibility
determination where applicant had previously omitted “that
she had undergone two forced abortions and had been driven to
attempt suicide”); Cheng Tong Wang v. Gonzales, 449 F.3d 451,
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453–54 (2d Cir. 2006) (“[O]missions that go to a heart of an
applicant’s claim can form the basis for an adverse
credibility determination.”). That determination is
dispositive of asylum, withholding of removal, and CAT relief
because all three claims are based on the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. The stay of removal that the Court previously issued
in this petition is VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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