Filed: Apr. 13, 2016
Latest Update: Mar. 02, 2020
Summary: 13-3851 Wang v. Lynch BIA Balasquide, IJ A087 797 661 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 N
Summary: 13-3851 Wang v. Lynch BIA Balasquide, IJ A087 797 661 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..
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13-3851
Wang v. Lynch
BIA
Balasquide, IJ
A087 797 661
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
13th day of April, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges.
_____________________________________
JIA WEN WANG,
Petitioner,
v.
13-3851
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, New
York.
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FOR RESPONDENT: Stuart F. Delery, Assistant
Attorney General; Jamie M.
Dowd, Senior Litigation
Counsel; Joanna L. Watson,
Trial Attorney; Office of
Immigration Litigation, U.S.
Department of Justice,
Washington, D.c.
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 Jia Wen Wang, a native and citizen of China,
seeks review of a September 18, 2013, decision of the BIA
affirming an October 31, 2011, decision of an Immigration Judge
(“IJ”) denying Wang’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Jia Wen Wang, No. A087 797 661 (B.I.A. Sept.
18, 2013), aff’g No. A087 797 661 (Immig. Ct. N.Y. City Oct.
31, 2011). 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 BIA’s and IJ’s decisions. See Zaman v. Mukasey, 514 F.3d
233, 237 (2d Cir. 2008) (per curiam). The applicable standards
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of review are well established. See 8 U.S.C. § 1252(b)(4)(B);
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per
curiam).
For asylum applications, like Wang’s, governed by the REAL
ID Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements, “without regard to whether” they go “to the heart
of the applicant’s claim,” so long as they reasonably support
an inference that the applicant is not credible. 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167. “We
defer therefore to an IJ’s credibility determination unless,
from the totality of the circumstances, 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 IJ’s finding that Wang was not credible.
The IJ’s credibility determination was properly based on
inconsistencies between Wang’s testimony and that of his
witness about photographs showing them practicing Falun Gong.
See 8 U.S.C. § 1158(b)(1)(B)(iii). Wang and his witness gave
3
differing testimony as to when the photographs were taken, by
whom, and with what camera. They gave different dates, one in
2010 and one in 2011. And, although Wang said his witness gave
him the photographs, the witness denied ever seeing them.
The IJ’s credibility determination was also properly based
on the fact that neither Wang’s personal statement nor his
father’s letter mentioned that Wang was required to report to
the police after his arrest. Xiu Xia Lin, 534 F.3d at 166 n.3
(providing that omissions are “functionally equivalent” to
inconsistencies for the purpose of assessing credibility);
id.
at 167 (explaining that omission of fact from a family member’s
letter “could have reasonably convinced the IJ that [the] story
of persecution was fabricated.”). The IJ was not required to
accept Wang’s explanation—that the single incident in which he
reported to the police was too insignificant to share with
others—because the reporting requirement stemmed directly from
his arrest and beating, and he considered it worth discussing
at the hearing. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d
Cir. 2005) (holding that agency need not credit applicant’s
explanations for inconsistent testimony unless those
explanations would compel reasonable fact-finder to do so).
4
These inconsistencies provide substantial support for the
IJ’s adverse credibility determination, particularly because
they call into question whether Wang is a Falun Gong
practitioner or suffered the alleged persecution. Wang’s
argument that the inconsistencies are too insignificant is
misplaced. The REAL ID Act allows the agency to base a
credibility finding on “any inconsistency,” and here, the
totality of the circumstances supports the agency’s conclusion
because the inconsistencies call into question whether Wang
even practices Falun Gong. See Xiu Xia Lin, 534 F.3d at 167.
Contrary to Wang’s argument, the IJ was not required to give
the photographs only limited evidentiary weight in light of the
inconsistent testimony between Wang and his witness. The
inconsistencies bear on credibility because they raise the
issue of whether the photographs were staged, and in turn,
whether Wang actually practices Falun Gong. See Siewe v.
Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (relying on the “maxim
of falsus in uno, falsus in omnibus [false in one thing, false
in everything]” to hold that once single document is shown to
be false, IJ is “free to deem suspect other documents (and to
disbelieve other testimony) that depend for probative weight
5
upon [applicant’s] veracity”); see also Xiu Xia Lin, 534 F.3d
at 167 (holding that agency may rely on any inconsistency). The
inconsistencies therefore infect the entirety of Wang’s claim.
Siewe, 480 F.3d at 170 (“[A] single false document or a single
instance of false testimony may . . . infect the balance of the
alien’s uncorroborated or unauthenticated evidence.”).
Because the only evidence of a threat to Wang’s life or
freedom relied on his credibility, 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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