Filed: Oct. 25, 2017
Latest Update: Mar. 03, 2020
Summary: 16-2311 Jiang v. Sessions BIA Christensen, IJ A205 420 793 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
Summary: 16-2311 Jiang v. Sessions BIA Christensen, IJ A205 420 793 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 T..
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16-2311
Jiang v. Sessions
BIA
Christensen, IJ
A205 420 793
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
25th day of October, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
YING JIANG,
Petitioner,
v. 16-2311
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dehai Zhang, Flushing, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Justin Markel,
Senior Litigation Counsel; Robert D.
Tennyson, 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 Ying Jiang, a native and citizen of the People’s
Republic of China, seeks review of a June 21, 2016, decision
of the BIA affirming a May 7, 2015, decision of an Immigration
Judge (“IJ”) denying Jiang’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Ying Jiang, No. A205 420 793 (B.I.A.
June 21, 2016), aff’g No. A205 420 793 (Immig. Ct. N.Y. City
May 7, 2015). 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 the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528 (2d
Cir. 2006). The applicable standards of review are well
established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . the consistency between the applicant’s
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or witness’s written and oral statements . . . , the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes 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.
Substantial evidence supports the agency’s determination that
Jiang was not credible as to his claims that Chinese police
detained and harmed him on account of his practice of
Christianity and that he continues to practice his religion in
the United States.
The agency reasonably relied on inconsistencies between
Jiang’s testimony and his earlier sworn statements during a
credible fear interview. See 8 U.S.C. § 1158(b)(1)(B)(iii).
As an initial matter, the agency did not err in finding the
interview record reliable because the interview was conducted
with an interpreter, the interview was memorialized in
typewritten question and answer format, the questions posed
were designed to elicit details of an asylum claim, and Jiang’s
responses showed no reluctance to answer questions. See Ming
Zhang v. Holder, 585 F.3d 715, 724-25 (2d Cir. 2009). At his
credible fear interview, Jiang stated that police did not
3
question or hit him after the first day of his month-long
detention. By contrast, he testified at his hearing that
police interrogated and beat him at least two more times after
the first day. The IJ was not compelled to credit Jiang’s
explanation that he had a fever at the interview because the
record of the interview states that there was no indication that
Jiang had a medical condition and it does not reflect that Jiang
had difficulty answering any other questions regarding his
claim. 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 quotations omitted)).
The agency also reasonably found Jiang’s testimony that he
was beaten on more than one day of his detention inconsistent
with his asylum application statement and his cellmate’s
letter, neither of which mentioned that Jiang was beaten after
his first day of detention although they described less relevant
deprivations, such as the limited amount of food and inability
to sleep through the night. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 166-67
& n.3 (concluding that an omission is the equivalent of an
4
inconsistency and may be relied on to support an adverse
credibility determination). Jiang did not provide a
compelling explanation for these inconsistencies. See Majidi,
430 F.3d at 80. In addition, Jiang and a fellow practitioner
from his church in the United States testified inconsistently
regarding whether, the evening before the hearing, they had left
church and walked several blocks together before saying
goodbye. See 8 U.S.C. § 1158(b)(1)(B)(iii). The witness had
no recollection of this episode, which the petitioner testified
had happened the previous day.
Having questioned Jiang’s credibility, the agency
reasonably relied further on his failure to rehabilitate his
credibility with reliable corroborating evidence. “An
applicant’s failure to corroborate his or her 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.” Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007). The agency did not err in
affording limited weight to Jiang’s father’s and friend’s
unsworn letters because, in addition to the inconsistency
between his testimony and his friend’s letter, the authors of
the letters were not available for cross-examination. See Y.C.
5
v. Holder, 741 F.3d 324, 334 (2d Cir. 2013). The agency also
did not err in giving diminished weight to an unsworn form letter
purportedly from the pastor at Jiang’s church in the United
States because no church official testified on Jiang’s behalf
and his fellow church member testified inconsistently regarding
the circumstances surrounding Jiang’s most recent attendance.
See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 341-42
(2d Cir. 2006) (holding that determination of the weight of
evidence is largely matter of agency discretion).
Given the inconsistency and lack of corroboration findings
that relate to Jiang’s alleged past harm and his practice of
Christianity, the agency’s adverse credibility determination
is supported by substantial evidence. 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. That
determination is dispositive of Jiang’s claims for asylum,
withholding of removal, and CAT relief because all three claims
are based on the same factual predicate. See 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
6
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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