Filed: Aug. 08, 2016
Latest Update: Mar. 03, 2020
Summary: 15-2594 Jiang v. Lynch BIA Christensen, IJ A205 301 357 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: 15-2594 Jiang v. Lynch BIA Christensen, IJ A205 301 357 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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15-2594
Jiang v. Lynch
BIA
Christensen, IJ
A205 301 357
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
8th day of August, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNIS JACOBS,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
ZHAO JIANG,
Petitioner,
v. 15-2594
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lewis G. Hu, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Greg D.
Mack, Senior Litigation Counsel;
Aaron D. Nelson, Trial Attorney,
Office of Immigration Litigation,
United States 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 Zhao Jiang, a native and citizen of the People’s
Republic of China, seeks review of a July 31, 2015 decision of
the BIA affirming a November 20, 2013 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 Zhao Jiang, No. A205 301 357 (B.I.A.
July 31, 2015), aff’g No. A205 301 357 (Immig. Ct. N.Y. City
Nov. 20, 2013). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We have reviewed both the IJ’s and the BIA’s opinions “for
the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528
(2d Cir. 2006). The applicable standards 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). For asylum
applications like Jiang’s, governed by the REAL ID Act, the
agency may, “[c]onsidering the totality of the circumstances
. . . base a credibility determination on the demeanor, candor,
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or responsiveness of the applicant or witness,” and
inconsistencies in an applicant’s statements and other record
evidence “without regard to whether” those inconsistencies go
“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 n.2. The
adverse credibility determination is supported by substantial
evidence.
The IJ reasonably relied on multiple inconsistencies among
Jiang’s testimony, supporting documents, and the testimony of
his witness. Xiu Xia Lin, 534 F.3d at 163-64. Those
inconsistencies constitute substantial evidence because they
relate to Jiang’s claim of past harm in China. Xian Tuan Ye
v. DHS,
446 F.3d 289, 295 (2d Cir. 2006). As the IJ concluded,
Jiang provided inconsistent evidence regarding whether he or
the police called Jiang’s mother to bail him out of detention.
Jiang inconsistently testified to both; his application stated
that police allowed him to call his mother; and his mother’s
letter stated that she received a call from the police station.
Jiang also testified inconsistently as to whether his
underground church was still in operation, stating that it was
not holding meetings, but was still standing, then explaining
3
that the members still had faith but no physical space.
However, the church’s letter in support of Jiang’s application
was dated September 2013, indicating that the church still
existed. That letter further undermined Jiang’s credibility
because it omitted any mention of any raids or arrests, even
though the letter was written by a member allegedly arrested
with Jiang. See Xiu Xia Lin, 534 F.3d at 166 n.3 (holding that
“[a]n inconsistency and an omission are . . . functionally
equivalent”). Jiang compounded this problem by testifying
inconsistently as to who was present during the raid on the
church: he initially stated that two church leaders were
present, Mr. Jiang and Mr. Li, but then testified that Mr. Jiang
was not present. Finally, Jiang testified that, after his
release from detention, he lived with his parents, as he had
always done; however, his application stated that he went to
Fuzhou City to hide for a month before leaving China.
The IJ’s findings are supported by the record and relate
to the single incident of past harm to which Jiang testified;
accordingly, their cumulative effect undermined the entire
basis of Jiang’s claim of past persecution. Xian Tuan Ye, 446
F.3d at 295; Tu Lin v. Gonzales,
446 F.3d 395, 402 (2d Cir. 2006).
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Moreover, Jiang did not provide compelling explanations for
these inconsistencies. Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005).
The adverse credibility determination is further supported
by Jiang’s inconsistent testimony regarding his church
attendance in the United States and the IJ’s demeanor finding.
See Xiu Xia Lin, 534 F.3d at 167 (allowing reliance on
“collateral or ancillary” inconsistencies);
Majidi, 430 F.3d
at 81 n.1 (explaining that “particular weight” is accorded to
IJ’s demeanor findings). Jiang’s testimony that he attended
church every Monday beginning in April 2012 was inconsistent
with both a witness who testified that Jiang missed several
weeks and a letter from the church reporting attendance for less
than half of the weeks between April 2012 and the date of the
letter. The IJ was not required to credit Jiang’s explanation,
which also contained inconsistencies.
Majidi, 430 F.3d at
80-81.
Considering the multiple inconsistencies in the record,
and Jiang’s poor demeanor, the “totality of the circumstances”
supports the adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 167. That determination is dispositive of
5
asylum, withholding of removal, and CAT relief because all three
forms of relief relied on the same factual predicate. See Paul
v. Gonzales, 444 F.3d 148, 156 (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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