16-1388
Jiang v. Sessions
BIA
Poczter, IJ
A205 390 719
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 10th day of October, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 WEI JIANG,
14 Petitioner,
15
16 v. 16-1388
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhen Liang Li, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Leslie
27 McKay, Anthony W. Norwood, Senior
28 Litigation Counsel, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
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 is
4 DENIED.
5 Petitioner Wei Jiang, a native and citizen of the People’s
6 Republic of China, seeks review of a March 30, 2016, decision
7 of the BIA affirming an April 23, 2015, decision of an
8 Immigration Judge (“IJ”) denying Jiang’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Wei Jiang, No. A205 390 719
11 (B.I.A. Mar. 30, 2016), aff’g No. A205 390 719 (Immig. Ct. N.Y.
12 City Apr. 23, 2015). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
16 F.3d 391, 394 (2d Cir. 2005) (per curiam). The applicable
17 standards of review are well established. See 8 U.S.C.
18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165–66
19 (2d Cir. 2008) (per curiam). The agency may, “[c]onsidering
20 the totality of the circumstances,” base a credibility finding
21 on an asylum applicant’s “demeanor, candor, or responsiveness,”
2
1 and inconsistencies in his testimony, his witness’s testimony,
2 and his documentary evidence, “without regard to whether” any
3 such inconsistencies go “to the heart of the applicant’s claim.”
4 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
5 at 163–64, 167. “We defer . . . to an IJ’s credibility
6 determination unless . . . it is plain that no reasonable
7 fact-finder could make such an adverse credibility ruling.”
8 Xiu Xia Lin, 534 F.3d at 167. Substantial evidence supports
9 the agency’s determination that Jiang was not credible.
10 Jiang primarily challenges the agency’s reliance on the
11 record of his interview with a Border Patrol agent, in which
12 he stated that he came to the United States to be with family
13 in New York and did not fear any harm in China.
14 “In assessing the reliability” of statements made during
15 a border interview, “we may take into account (1) whether the
16 ‘record of the interview . . . merely summarizes or paraphrases
17 the alien’s statements [rather than providing] a verbatim
18 account or transcript,’ (2) whether the questions posed to the
19 alien seem ‘designed to elicit the details of an asylum claim,’
20 (3) whether ‘the alien appears to have been reluctant to reveal
21 information to . . . officials because of prior interrogation
3
1 sessions or other coercive experiences in his or her home
2 country,’ and (4) whether ‘the alien’s answers to the questions
3 posed suggest that the alien did not understand English or the
4 translations provided by the interpreter.” Yun-Zui Guan, 432
5 F.3d at 396 (quoting Ramsameachire v. Ashcroft, 357 F.3d 169,
6 179–80 (2d Cir. 2004)). The interview record reflected Jiang’s
7 answers verbatim and showed that an interpreter was used and
8 that Jiang understood the agent’s questions. And while Jiang
9 testified that he told the Border Patrol agent that he feared
10 harm in China, he also acknowledged that he understood the
11 interpreter and signed the interview record after it was read
12 to him. Thus, the agency did not err in concluding that the
13 interview record was reliable. Id.
14 Jiang concedes that his testimony conflicted with his
15 sister’s testimony regarding whether he attended church on the
16 Sunday before the asylum hearing. Although he argues that
17 their respective testimonies were otherwise consistent and thus
18 believable, his position is unfounded. The inconsistency
19 between Jiang’s testimony and his sister’s testimony called
20 into question their credibility as a whole and undermined
21 Jiang’s claim that he is a practicing Christian. See Siewe v.
4
1 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false
2 document or a single instance of false testimony may (if
3 attributable to the petitioner) infect the balance of the
4 alien’s uncorroborated or unauthenticated evidence.”). Jiang
5 testified that he skipped church for the first time because he
6 was picking up money that a friend owed his sister. However,
7 Jiang’s sister testified that she and Jiang attended church
8 together that day, Jiang stayed for the entire sermon, Jiang’s
9 friends did not owe her any money, and no one had returned money
10 to her that day. Jiang has not offered any explanation for this
11 discrepancy, which calls into question both Jiang’s and his
12 sister’s credibility regarding their church attendance. Id.;
13 see also Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
14 Jiang does not challenge any other grounds for the adverse
15 credibility determination and did not challenge them before the
16 BIA, so any further challenges are both unexhausted and waived.
17 See Foster v. U.S. INS, 376 F.3d 75, 78 (2d Cir. 2004) (per
18 curiam) (discussing exhaustion); Shunfu Li v. Mukasey, 529 F.3d
19 141, 146 (2d Cir. 2008) (waiver). Accordingly, the agency’s
20 other grounds—inconsistent documentary evidence regarding
21 Jiang’s church attendance, and Jiang’s demeanor—stand as valid
5
1 bases for the adverse credibility determination. See Shunfu
2 Li, 529 F.3d at 146–47.
3 Given the substantial discrepancies relating both to
4 Jiang’s allegation of past harm and his continuing practice of
5 Christianity, the totality of the circumstances supports the
6 adverse credibility determination. Xiu Xia Lin, 534 F.3d at
7 167. Because Jiang’s claims were all based on the same factual
8 predicate, the adverse credibility determination is
9 dispositive of asylum, withholding of removal, and CAT relief.
10 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
6