Filed: Feb. 19, 2020
Latest Update: Mar. 03, 2020
Summary: 18-176 Dong v. Barr BIA Poczter, IJ A208 190 350/352 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 NO
Summary: 18-176 Dong v. Barr BIA Poczter, IJ A208 190 350/352 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 NOT..
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18-176
Dong v. Barr
BIA
Poczter, IJ
A208 190 350/352
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 19th day of February, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
YU MEI DONG, JIA ZHANG JIANG,
AKA MING KU,
Petitioners,
v. 18-176
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Richard Tarzia, Law Office of
Richard Tarzia, Belle Mead, NJ.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Anthony C. Payne,
Assistant Director; Jennifer A.
Bowen, 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.
Petitioners Yu Mei Dong and Jia Zhang Jiang, natives and
citizens of the People’s Republic of China, seek review of a
January 5, 2018 decision of the BIA affirming a May 10, 2017
decision of an Immigration Judge (“IJ”) denying their
applications for asylum and withholding of removal.1 In re
Yu Mei Dong and Jia Zhang Jiang, No. A 208 190 350/352 (BIA
Jan. 5, 2018), aff’g No. A 208 190 350/352 (Immig. Ct. N.Y.
City May 10, 2017). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
1 The IJ also denied Petitioners protection under the Convention Against Torture
(“CAT”). The BIA determined that Petitioners had not appealed the portion of
the IJ’s decision addressing their CAT claims, and Petitioners do not challenge
that holding.
2
524, 528 (2d Cir. 2006). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing
adverse credibility determination for substantial evidence).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on” inconsistencies between an applicant’s
statements or between statements and other evidence or
witnesses. 8 U.S.C. § 1158(b)(1)(B)(iii). “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 v. Mukasey,
534 F.3d 162,
167 (2d Cir. 2008); accord Hong Fei
Gao, 891 F.3d at 76.
Substantial evidence supports the agency’s adverse
credibility determination.
First, there were several inconsistencies between
Jiang’s testimony and his statements during his credible fear
interview. Jiang’s testimony was inconsistent with his
credible fear interview regarding how many times he attended
church gatherings before he was arrested: at the credible
fear interview he stated he attended four times, but he
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testified to ten. His testimony was also inconsistent with
his credible fear interview regarding where he attended
church: at the credible fear interview he stated that he
attended gatherings at the home of a friend, Jian Li. But he
testified to the contrary, stating that Jian Li was not a
member of his group. Furthermore, Jiang’s testimony was
inconsistent with the credible fear interview regarding the
date that he was arrested. The IJ was not required to credit
Jiang’s explanation that he was nervous. See Majidi v.
Gonzales, 430 F.3d 77, 80 (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.” (internal quotation marks and citations
omitted)). Nor did the agency err in relying on these
inconsistencies because the record of the credible fear
interview was sufficiently reliable. The officer noted that
he attempted to provide a verbatim record of the interview,
“the proceeding was memorialized in a typewritten document
setting forth the questions put to petitioner as well as h[is]
responses,” the questions were designed to elicit the details
4
of an asylum claim, and Jiang indicated that he understood
the interpreter. See Ming Zhang v. Holder, 585 F.3d 715,
721, 725 (2d Cir. 2009) (holding that interview record may be
considered if it “(1) provides a verbatim account or
transcript of the alien’s statements; (2) was conducted in a
manner designed to elicit the details of an asylum claim; and
(3) contains no indication that the alien was reluctant to
reveal information or did not understand English or the
translations provided by the interpreter.” (internal
quotation marks omitted)).
Second, Dong’s and Jiang’s descriptions of Dong’s
injuries were inconsistent. Jiang testified that after Dong
left detention, she had swelling on the back of her head,
whereas Dong testified that she did not have any swelling.
Even a minor inconsistency between their testimony such as
this bolsters the adverse credibility determination. See Xiu
Xia Lin, 534 F.3d at 167 (“[A]n IJ may rely on any
inconsistency . . . as long as the ‘totality of the
circumstances’ establishes that an asylum applicant is not
credible.”).
Finally, Dong and Jiang have not challenged the agency’s
5
finding that their documentary evidence did not rehabilitate
their credibility. See Norton v. Sam’s Club, 145 F.3d 114,
117 (2d Cir. 1998) (“Issues not sufficiently argued in the
briefs are considered waived and normally will not be
addressed on appeal.”). However, even if this argument was
not waived, the agency was justified in determining that Dong
and Jiang’s documentary evidence did not rehabilitate their
credibility. 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.”). Documents showing that Dong and Jiang attend
church in the United States did not rehabilitate their claim
of past persecution. Nor did the IJ err in giving diminished
weight to affidavits from individuals in China who were not
subject to cross-examination. See Y.C. v. Holder,
741 F.3d
324, 332 (2d Cir. 2013) (“We generally defer to the agency’s
evaluation of the weight to be afforded an applicant’s
documentary evidence.”);
id. at 334 (deferring to BIA’s
decision declining to credit letter from spouse in China);
6
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010)
(giving diminished weight to letters from relatives because
they were from interested witnesses not subject to cross-
examination), rev’d on other grounds by Hui Lin Huang v.
Holder, 677 F.3d 130 (2d Cir. 2012).
Given the inconsistencies and lack of reliable
corroboration, we find that substantial evidence supports the
adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. And
since Dong and Jiang’s claims were all based on the same
factual predicate, the adverse credibility determination is
dispositive of all forms of relief. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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