Filed: Mar. 27, 2013
Latest Update: Mar. 28, 2017
Summary: 11-4846 Jiang v. Holder BIA Balasquide, IJ A087 464 767 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: 11-4846 Jiang v. Holder BIA Balasquide, IJ A087 464 767 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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11-4846
Jiang v. Holder
BIA
Balasquide, IJ
A087 464 767
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 27th day of March, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 LIANG JIE JIANG,
14 Petitioner,
15
16 v. 11-4846
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Offices of Michael
24 Brown, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Thomas B.
28 Fatouros, Senior Litigation Counsel;
29 Arthur L. Rabin, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Liang Jie Jiang, a native and citizen of the People’s
6 Republic of China, seeks review of a November 9, 2011,
7 decision of the BIA affirming the April 14, 2010, decision
8 of Immigration Judge (“IJ”) Javier Balasquide, which denied
9 his application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Liang Jie Jiang, No. A087 464 767 (B.I.A. Nov. 9, 2011),
12 aff’g No. A087 464 767 (Immig. Ct. N.Y. City Apr. 14, 2010).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
20
562 F.3d 510, 513 (2d Cir. 2009). Because Jiang does not
21 challenge the denial of CAT relief, we address only asylum
22 and withholding of removal.
23
2
1 For applications such as Jiang’s, governed by the
2 amendments made to the Immigration and Nationality Act by
3 the REAL ID Act of 2005, the agency may, considering the
4 totality of the circumstances, base a credibility finding on
5 the applicant’s “demeanor, candor, or responsiveness,” the
6 plausibility of his account, and inconsistencies in his
7 statements, without regard to whether they go “to the heart
8 of the . . . claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
9 1231(b)(3)(C); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
10 Cir. 2008). We will “defer to an IJ’s credibility
11 determination unless, from the totality of the
12 circumstances, it is plain that no reasonable fact-finder
13 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
14 The IJ’s adverse credibility determination is supported by
15 substantial evidence.
16 The IJ reasonably based his credibility finding on
17 Jiang’s inconsistent testimony and inconsistencies among his
18 testimony, his brother’s testimony, and the documentary
19 evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
20 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167. Indeed, the
21 record reflects that: (1) Jiang’s testimony that he had
22 practiced Falun Gong in his brother’s home was contrary to
3
1 both his later testimony that he had never visited his
2 brother’s house and his brother’s testimony that he (Jiang)
3 had practiced only in his own apartment and the park;
4 (2) his testimony that he had moved to Guang Hui number 251
5 and had gone into hiding at his sister-in-law’s house was
6 contrary to his earlier testimony that he had not moved from
7 number 102 and his household registration booklet that
8 reflected only the 102 address; (3) his testimony that he
9 and his wife moved in 2005 to the 102 address contradicted
10 the 2007 date listed in his household registration booklet;
11 (4) his testimony that he had obtained the registration
12 booklet while he was in China, conflicted with the issuance
13 date listed on the booklet and his later testimony that his
14 wife obtained the booklet; and (5) his brother’s testimony
15 that the photographs of him practicing Falun Gong were taken
16 in summer conflicted with his own testimony that they were
17 taken in January and the photographs themselves which
18 reflected that they were taken during fall or winter. The
19 agency did not err in relying on these inconsistencies in
20 making an adverse credibility determination. See 8 U.S.C.
21 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
22 at 167 (providing that an IJ may support an adverse
4
1 credibility determination with “any inconsistency or
2 omission”).
3 Moreover, the IJ reasonably rejected Jiang’s
4 explanations for his inconsistent testimony, specifically
5 that he was nervous or “blank[ed] out,” because they did not
6 resolve how he gave detailed yet contradictory testimony.
7 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
8 In addition, the adverse credibility determination is
9 further supported by the IJ’s demeanor finding based on
10 Jiang’s evasive testimony. See Li Hua Lin v. U.S. Dep’t of
11 Justice,
453 F.3d 99, 109 (2d Cir. 2006).
12 The IJ also reasonably relied on Jiang’s failure to
13 submit sufficient corroborating evidence that Chinese family
14 planning officials had forcibly aborted his wife’s pregnancy
15 and fined his wife when Jiang submitted only an abortion
16 certificate from the government and no medical records
17 showing that his wife had been pregnant and had undergone an
18 abortion. See Chuilu Liu v. Holder,
575 F.3d 193, 198 n.5
19 (2d Cir. 2009) (the agency may rely on an applicant’s
20 failure to provide convincing corroborating evidence in
21 making an adverse credibility determination).
22 Given these inconsistencies, the negative demeanor
23 finding, and the lack of corroboration, the totality of the
5
1 circumstances supports the agency’s adverse credibility
2 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
3 Lin, 534 F.3d at 167. Because the only evidence of a threat
4 to Jiang’s life or freedom depended upon his credibility,
5 the adverse credibility determination in this case also
6 necessarily precludes success on his claim for withholding
7 of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
8 Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
6
