16-2050
Dong v. Sessions
BIA
Poczter, IJ
A206 052 384
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
12th day of October, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
XINGXIONG DONG,
Petitioner,
v. 16-2050
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Paul Fiorino,
Senior Litigation Counsel; Jenny C.
Lee, Trial Attorney, 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 Xingxiong Dong, a native and citizen of the
People’s Republic of China, seeks review of a May 23, 2016,
decision of the BIA affirming an October 31, 2014, decision of
an Immigration Judge (“IJ”) denying Dong’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Xingxiong Dong, No. A206 052
384 (B.I.A. May 23, 2016), aff’g No. A206 052 384 (Immig. Ct.
N.Y. City Oct. 31, 2014). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA, and reach only the adverse
credibility determination. See Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review the
adverse credibility determination for substantial evidence.
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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The agency may, “[c]onsidering the totality of the
circumstances,” base an adverse credibility determination on
an applicant’s “demeanor, candor, or responsiveness,” as well
as inconsistencies or omissions in an applicant’s oral and
written statements and other record evidence, regardless of
whether any such discrepancies “go[] to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility
determination unless . . . it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin, 534 F.3d at 167.
Substantial evidence supports the agency’s conclusion that
Dong was not credible. The agency reasonably relied on a
discrepancy regarding Dong’s introduction to Christianity.
See 8 U.S.C. § 1158(b)(1)(B)(iii). This discrepancy is
supported by the record. Dong’s application, testimony, and
evidence stated that he first came into contact with
Christianity on November 17, 2011, when he attended an
underground church at his sister’s suggestion. However, on
cross examination, Dong testified that he came from a Christian
family; that both his parents and wife, whom he married in 2000,
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were Christian and occasionally attended underground church
services; and that his parents taught him and his sister about
Christianity when they were children. While it is plausible
that Dong did not consider himself to be Christian until he
attended a church service, this does not explain why Dong
emphasized his sister’s Christianity while omitting that his
wife and parents are also Christian. Majidi v. Gonzales, 430
F.3d 77, 80-81 (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.”
(quotation marks omitted)); see also Xiu Xia Lin, 534 F.3d at
166 n.3 (“An inconsistency and an omission
are . . . functionally equivalent.”).
The agency reasonably concluded that Dong’s letter from his
sister and the absence of letters from his wife and parents
further undermined his credibility. Dong’s sister’s letter
also omitted that their parents and Dong’s wife are Christian,
as well as omitting the reason that she recommended Dong attend
church. Xiu Xia Lin, 534 F.3d at 166-67 & n.3 (upholding
agency’s reliance on omissions in letters as support for an
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adverse credibility determination). Dong’s explanation that
his sister simplified her letter because she was worried it
might be intercepted by the authorities is not compelling given
her statement in the letter that she preached to Dong. Majidi,
430 F.3d at 80-81. And the absence of letters from Dong’s
parents or wife made Dong unable to rehabilitate or clarify his
testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
Cir. 2007) (“An applicant’s failure to corroborate his . . .
testimony may bear on credibility, because the absence of
corroboration in general makes an applicant unable to
rehabilitate testimony that has already been called into
question.”). The agency reasonably rejected Dong’s
explanation that he did not want to implicate his parents or
wife given both his willingness to obtain a letter from his
sister describing her “repetitive preaching” and his testimony
that his family has not had any problems on account of their
Christianity. See 8 U.S.C. § 1252(b)(4) (courts may not
reverse agency’s determination regarding the availability of
corroborating evidence unless we are “compelled to conclude
that such corroborating evidence is unavailable.”).
5
These discrepancies call into question Dong’s timeline and
motivation for practicing Christianity, and thus, the
believability of his claim. See Siewe v. Gonzales, 480 F.3d
160, 170 (2d Cir. 2007) (“[A] single false document or a single
instance of false testimony may (if attributable to petitioner)
infect the balance of the alien’s uncorroborated or
unauthenticated evidence.”); see also Xiu Xia Lin, 534 F.3d at
164 (“[I]n evaluating an asylum applicant’s credibility, an IJ
may rely on omissions and inconsistencies that do not directly
relate to the applicant’s claim of persecution as long as the
totality of the circumstances establish that the applicant is
not credible.”).
Dong argues that the agency should have separately
addressed whether he has a well-founded fear of persecution
based on his church attendance in the United States. However,
Dong did not press this claim before the agency and did not
submit country conditions evidence to show that he would be
targeted absent past persecution. See Foster v. U.S. INS, 376
F.3d 75, 78 (2d Cir. 2004) (requiring petitioner to raise issues
to the agency in order to preserve them for judicial review).
Moreover, Dong’s lack of credibility regarding his past
6
practice of Christianity calls into question the sincerity of
his religious practice in the United States and the credibility
of his intent to continue to practice if returned to China.
Siewe, 480 F.3d at 170.
Because Dong’s claims were all based on the same factual
predicate, the adverse credibility determination is
dispositive of asylum, withholding of removal, and CAT relief.
Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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