Filed: Aug. 17, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3552-ag Jiang v. Holder BIA Brennan, IJ A094 824 889 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
Summary: 09-3552-ag Jiang v. Holder BIA Brennan, IJ A094 824 889 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 ..
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09-3552-ag
Jiang v. Holder
BIA
Brennan, IJ
A094 824 889
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17 th day of August, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 GUIDO CALABRESI,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 XUE MING JIANG,
14 Petitioner,
15
16 v. 09-3552-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Dawn S. Conrad, Trial Attorney
26 (Francis W. Fraser, Senior
27 Litigation Counsel, Tony West,
28 Assistant Attorney General), Office
29 of Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
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
4 is DENIED.
5 Petitioner Xue Ming Jiang, a native and citizen of
6 China, seeks review of the July 24, 2009 order of the BIA,
7 affirming the October 15, 2007 decision of Immigration Judge
8 (“IJ”) Noel A. Brennan denying his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Xue Ming Jiang, No. A094 824
11 889 (B.I.A. July 24, 2009), aff’g No. A094 824 889 (Immigr.
12 Ct. N.Y. City Oct. 15, 2007). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review both
16 the BIA’s and IJ’s decisions. See Yan Chen v. Gonzales, 417
17 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
18 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
19 Corovic v. Mukasey,
519 F.3d 90, 95 (2d Cir. 2008); see also
20 Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008).
21 Substantial evidence supports the agency’s adverse
22 credibility determination. For asylum applications governed
23 by the amendments made to the Immigration and Nationality
2
1 Act by the REAL ID Act of 2005, the agency may, considering
2 the totality of the circumstances, base a credibility
3 finding on an asylum applicant’s demeanor, the plausibility
4 of his or her account, and inconsistencies in his or her
5 statements, “without regard to whether” they go “to the
6 heart of the applicant’s claim.” 8 U.S.C. §
7 1158(b)(1)(B)(iii). Here, the record supports the IJ’s
8 findings that: (1) Jiang provided inconsistent testimony
9 regarding the details of his arrest; (2) Jiang provided
10 evasive and inconsistent testimony regarding whether he was
11 employed after he was released from detention; (3) Jiang
12 failed to provide an adequate explanation as to how he was
13 able to obtain travel visas after he was released from
14 detention, given that he was expected to report monthly to
15 Chinese authorities; (4) Jiang’s negative demeanor was
16 impacted by his quirky behavior, which included a “forced
17 cough” during certain parts of his testimony; (5) Jiang
18 testified implausibly when he claimed that he did not know
19 how long his friend was detained, even though he and his
20 friend were arrested together and though he submitted a
21 letter from his friend which indicated that his friend was
22 detained for two weeks; and (6) Jiang testified implausibly
23 that he practiced Falun Gong alone in his house in Brooklyn,
3
1 but submitted photographs thereby indicating that someone
2 else had been present on at least three occasions.
3 To the extent Jiang challenges the IJ’s other
4 credibility findings, we decline to consider these
5 arguments. Even if the IJ’s remaining findings were in
6 error, remand would be futile as we can confidently predict
7 that the agency would reach the same conclusion on remand.
8 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342
9 (2d Cir. 2006). Accordingly, the IJ properly denied Jiang’s
10 application for withholding of removal and CAT relief
11 because the only evidence that he was likely to be
12 persecuted or tortured depended on his credibility. See
13 Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25
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