11-4600 BIA
Jiang v. Holder Balasquide, IJ
A088 345 761
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of August, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11
12
13 XIU YU JIANG,
14 Petitioner,
15
16 v. 11-4600
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Alison R. Drucker,
27 Senior Litigation Counsel; John W.
28 Blakeley, Senior Litigation Counsel;
29 Daniel C. Collier, Law Clerk, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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
4 is DENIED.
5 Petitioner Xiu Yu Jiang, a native and citizen of China,
6 seeks review of an October 3, 2011, order of the BIA,
7 affirming the March 1, 2010, decision of an Immigration
8 Judge (“IJ”)denying her application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Xiu Yu Jiang, No. A088 345 761 (B.I.A. Oct.
11 3, 2011), aff’g No. A088 345 761 (Immig. Ct. New York City
12 Mar. 1, 2010). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the decisions of both the IJ and the BIA. See Yun-Zui Guan
16 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
17 For applications such as Jiang’s, which are governed by the
18 REAL ID Act, the agency may base a credibility finding on an
19 applicant’s demeanor, the plausibility of her account, and
20 inconsistencies in her statements, without regard to whether
21 they go “to the heart of the applicant’s claim.” 8 U.S.C. §
22 1158(b)(1)(B)(iii). We “defer to an IJ’s credibility
23 determination unless, from the totality of the
24 circumstances, it is plain that no reasonable fact-finder
2
1 could make such an adverse credibility ruling.” Xiu Xia Lin
2 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
3 Contrary to Jiang’s assertions, the agency reasonably
4 found that she was not credible on the basis of
5 inconsistencies within her testimony, and between her
6 testimony and application statement, regarding the number,
7 dates, and circumstances of her arrest(s) and the number of
8 times she escaped arrest while distributing Falun Gong
9 flyers. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
10 F.3d at 167. Although Jiang argues that the agency
11 excessively relied on her inability to recall specific
12 dates, Jiang’s inconsistent testimony extended well beyond
13 dates and included the circumstances of her arrest and near
14 escape, as well as whether her second arrest and second near
15 escape occurred at all. See Xiu Xia Lin, 534 F.3d at 167.
16 Moreover, while Jiang argues that she reasonably
17 explained that her memory troubles were due to her
18 depressive disorder and the anxiety caused by her biological
19 mother’s presence, the agency was not required to credit her
20 explanation as it would not necessarily be compelling to a
21 reasonable fact-finder. See Majidi v. Gonzales, 430 F.3d
22 77, 80-81 (2d Cir. 2005). Indeed, the IJ reasonably noted
23 that Jiang provided inconsistent testimony on almost every
3
1 aspect of her claim, and her purported memory troubles do
2 not adequately explain the pervasive inconsistencies in her
3 testimony. See Xiu Xia Lin, 534 F.3d at 167; Majidi, 430
4 F.3d at 80-81.
5 Jiang’s argument that the agency erred by ignoring a
6 corroborative letter from her friend and fellow practitioner
7 of Falun-Gong in China is also misplaced. See Xiao Ji Chen
8 v. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
9 (presuming that the agency “has taken into account all of
10 the evidence before [it], unless the record compellingly
11 suggests otherwise”); see also Zhi Yun Gao v. Mukasey, 508
12 F.3d 86, 87 (2d Cir. 2007) (per curiam) (noting that the BIA
13 is not required to “expressly parse or refute on the record
14 each individual argument or piece of evidence offered by the
15 petitioner” (internal quotation marks omitted)).
16 Because we find the agency’s adverse credibility
17 determination supported by substantial evidence on the basis
18 of the above-identified inconsistencies, we decline to
19 consider Jiang’s argument that she adequately explained her
20 biological mother’s testimony that Jiang came to the United
21 States to reunite.
22 As the agency’s adverse credibility determination is
23 supported by substantial evidence, the agency’s denial of
4
1 Jiang’s application for asylum and withholding of removal
2 was not in error as both claims shared the same factual
3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
4 2006). Lastly, we decline to consider the agency’s denial
5 of CAT relief because Jiang does not contest that finding in
6 this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
7 541 n.1, 545 n.7 (2d Cir. 2005).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, Jiang’s pending
10 motion for a stay of removal in this petition is DISMISSED
11 as moot.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
5