16-763
Yang v. Sessions
BIA
Poczter, IJ
A201 133 890
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 24th day of August, two thousand seventeen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 PETER W. HALL,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 DONG YANG,
14 Petitioner,
15
16 v. 16-763
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Keith S. Barnett, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy,
26 Assistant Attorney General; Andrew N.
27 O’Malley, Senior Litigation Counsel;
28 Kimberly A. Burdge, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
32
1 UPON DUE CONSIDERATION of this petition for review of a Board
2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
3 ADJUDGED, AND DECREED that the petition for review is DENIED.
4 Petitioner Dong Yang, a native and citizen of the People’s
5 Republic of China, seeks review of a February 10, 2016, decision
6 of the BIA, affirming an April 6, 2015, decision of an Immigration
7 Judge (“IJ”) denying Yang’s application for asylum, withholding
8 of removal, and relief under the Convention Against Torture
9 (“CAT”). In re Dong Yang, No. A201 133 890 (B.I.A. Feb. 10,
10 2016), aff’g No. A201 133 890 (Immig. Ct. N.Y. City Apr. 6, 2015).
11 We assume the parties’ familiarity with the underlying facts
12 and procedural history in this case.
13 Under the circumstances of this case, we have reviewed both
14 the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d
15 391, 394 (2d Cir. 2005). The applicable standards of review are
16 well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
17 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
18 For asylum applications like Yang’s, governed by the REAL
19 ID Act, the agency may, “[c]onsidering the totality of the
20 circumstances,” base a credibility finding on inconsistencies
21 in an asylum applicant’s statements and other record evidence
22 “without regard to whether” those inconsistencies go “to the
23 heart of the applicant’s claim.” 8 U.S.C.
2
1 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64.
2 For the reasons that follow, we conclude that substantial
3 evidence supports the agency’s determination that Yang was not
4 credible.
5 The agency’s credibility determination is supported by the
6 inconsistency between Yang’s testimony that his roommate Richard
7 introduced him to Christianity and his written application,
8 which stated that he was inspired to practice Christianity after
9 seeing other cruise-ship passengers worshipping together. See
10 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“[O]ur review
11 . . . is designed to ensure merely that credibility findings
12 are based upon neither a misstatement of the facts in the record
13 nor bald speculation or caprice[.]” (internal citations and
14 quotation marks omitted)).
15 The agency’s adverse credibility determination is further
16 supported by two inconsistencies between Yang’s testimony and
17 a letter from his friend, Chang Ning Ping. First, Yang
18 testified that he and Ping practiced Christianity together in
19 China; however, Ping’s letter omitted this information. See
20 Xiu Xia Lin, 543 F.3d at 166-67 & n.3 (“An inconsistency and
21 an omission are, for these purposes, functionally
22 equivalent.”). To explain Ping’s omission, Yang introduced an
23 additional inconsistency: he stated that Ping attended a
3
1 different church. See Majidi, 430 F.3d at 80 (requiring that
2 explanations for inconsistencies “demonstrate that a
3 reasonable fact-finder would be compelled to credit his
4 testimony” (internal quotation marks omitted)). Second, Yang
5 testified that, following his detention and interrogation, he
6 was admitted to the hospital on April 7. Ping’s letter stated
7 that Yang went to the hospital on April 10. The IJ was not
8 compelled to accept Yang’s explanation that this was Ping’s
9 error, particularly given that Yang testified that he was
10 familiar with the contents of Ping’s letter but entered it into
11 evidence without any explanation of the error. See id.
12 The agency’s adverse credibility determination is further
13 supported by two additional inconsistencies. First, Yang’s
14 wife’s letter omitted any discussion about how she learned of
15 his Christianity, while Yang testified she saw him praying.
16 Second, Yang admitted that he listed only a New York address
17 on his asylum application, despite living outside New York until
18 August 2013. An IJ has broad discretion to rely on collateral
19 discrepancies, like these, where, as here, “the totality of the
20 circumstances establishes that an asylum applicant is not
21 credible.” Xiu Xia Lin, 534 F.3d at 167 (internal citation and
22 quotation marks omitted).
4
1 The agency’s adverse credibility determination is
2 bolstered by Yang’s failure to offer evidence that rehabilitated
3 his testimony. The IJ reasonably found that the letters from
4 Yang’s wife and Ping did not corroborate Yang’s testimony, given
5 the contradictions and omissions described above. See Biao Yang
6 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
7 failure to corroborate his or her testimony may bear on
8 credibility, because the absence of corroboration in general
9 makes an applicant unable to rehabilitate testimony that has
10 already been called into question.”). Moreover, we defer to the
11 agency’s decision to afford diminished weight to Yang’s letters.
12 See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).
13 Given the inconsistencies and lack of reliable
14 corroboration, the IJ reasonably found Yang not credible. See
15 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
16 at 165-66. The adverse credibility determination is
17 dispositive of asylum, withholding of removal, and CAT relief
18 because all three claims are based on the same factual predicate.
19 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. The motion for a stay of removal in this petition is
22 also DISMISSED as moot. Any pending request for oral argument
23 in this petition is DENIED in accordance with Federal Rule of
5
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6