19-2331
Dong v. Garland
BIA
Laforest, IJ
A206 295 117
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 14th day of December, two thousand twenty-
5 one.
6
7 PRESENT:
8 ROSEMARY S. POOLER,
9 RAYMOND J. LOHIER, JR.,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 WENGE DONG,
15 Petitioner,
16
17 v. 19-2331
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent. 1
22 _____________________________________
23
24 FOR PETITIONER: Zhen Liang Li, Esq., New
25 York, NY.
26
1 The Clerk of Court is respectfully directed to amend the caption as set
forth above.
1 FOR RESPONDENT: Brian Boynton, Acting Assistant
2 Attorney General; Civil Division,
3 Paul Fiorino, Senior Litigation
4 Counsel; Judith R. O’Sullivan,
5 Trial Attorney, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, DC.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Wenge Dong, a native and citizen of the
15 People’s Republic of China, seeks review of a June 21, 2019
16 decision of the BIA affirming a February 1, 2018 decision of
17 an Immigration Judge (“IJ”) denying Dong’s application for
18 asylum, withholding of removal, and relief under the
19 Convention Against Torture (“CAT”). In re Wenge Dong, No.
20 A206 295 117 (B.I.A. June 21, 2019), aff’g No. A206 295 117
21 (Immig. Ct. N.Y. City Feb. 1, 2018). We assume the parties’
22 familiarity with the underlying facts and procedural history.
23 Under the circumstances, we have considered both the IJ’s
24 and the BIA’s opinions “for the sake of completeness.”
25 Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528
26 (2d Cir. 2006). The applicable standards of review are well
27 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
2
1 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
2 “Considering the totality of the circumstances, and all
3 relevant factors, a trier of fact may base a credibility
4 determination on the demeanor, candor, or responsiveness of
5 the applicant or witness, the inherent plausibility of the
6 applicant’s or witness’s account, the consistency between the
7 applicant’s or witness’s written and oral statements . . . ,
8 [and] the internal consistency of each such statement . . .
9 without regard to whether an inconsistency, inaccuracy, or
10 falsehood goes to the heart of the applicant’s claim, or any
11 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
12 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir.
13 2008). “We defer . . . to an IJ’s credibility determination
14 unless, from the totality of the circumstances, it is plain
15 that no reasonable fact-finder could make such an adverse
16 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167; accord
17 Hong Fei Gao, 891 F.3d at 76-77.
18 Applying these standards, we conclude that substantial
19 evidence supports the agency’s determination that Dong was
20 not credible as to his claim that police in China detained
21 and beat him for organizing protests against a corrupt
22 employer who had laid him off and later terminated his
3
1 employment. First, the IJ found Dong’s demeanor evasive. See
2 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is supported by
3 the record, which shows that Dong provided unresponsive
4 answers to questions about his alleged beating, gave
5 contradictory and nonsensical answers to questions about how
6 he was able to recall in which month he started a new job
7 after his termination, and avoided answering questions as to
8 whether he had noticed inaccuracies in his employer’s
9 termination notice. Accordingly, we afford “particular
10 deference” to the IJ’s demeanor finding. Jin Chen v. U.S.
11 Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005).
12 Second, the IJ’s demeanor finding and adverse credibility
13 determination as a whole were further supported by Dong’s
14 inconsistent evidence regarding when he last organized a
15 protest against his employer and what job he had held at his
16 employer’s place of business. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dep’t of
18 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still
19 more confident in our review of observations about an
20 applicant’s demeanor where, as here, they are supported by
21 specific examples of inconsistent testimony.”). Dong did not
22 compellingly explain these inconsistencies. See 8 U.S.C.
4
1 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 80 (2d
2 Cir. 2005) (“A petitioner must do more than offer a plausible
3 explanation for his inconsistent statements to secure relief;
4 he must demonstrate that a reasonable fact-finder would be
5 compelled to credit his testimony.” (internal quotations
6 omitted)).
7 Next, having questioned Dong’s credibility, the agency
8 reasonably relied further on his failure to rehabilitate his
9 testimony with reliable corroborating evidence. See Biao
10 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
11 applicant’s failure to corroborate his or her testimony may
12 bear on credibility, because the absence of corroboration in
13 general makes an applicant unable to rehabilitate testimony
14 that has already been called into question.”). The IJ
15 reasonably declined to credit unsworn letters from his mother
16 and coworker, because neither was subject to cross-
17 examination. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
18 2013); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209,
19 215 (B.I.A. 2010) (finding that letters from alien’s friends
20 and family were not substantial support for alien’s claims
21 because they were from interested witnesses not subject to
22 cross-examination), overruled on other grounds by Hui Lin
5
1 Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).
2 Further, the IJ was not compelled to credit the Public
3 Security Administrative Penalty Decision or the certificate
4 provided by Dong’s doctor. See Y.C., 741 F.3d at 332.
5 These demeanor, inconsistency, and corroboration
6 findings amount to substantial evidence supporting the
7 agency’s adverse credibility determination. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii). That determination is dispositive of
9 Dong’s claims for asylum, withholding of removal, and CAT
10 relief because all three claims were based on the same factual
11 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
12 Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
6