Filed: Dec. 19, 2017
Latest Update: Mar. 03, 2020
Summary: 16-2052 Gong v. Sessions BIA Poczter, IJ A206 560 419 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: 16-2052 Gong v. Sessions BIA Poczter, IJ A206 560 419 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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16-2052
Gong v. Sessions
BIA
Poczter, IJ
A206 560 419
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 19th day of December, two thousand
5 seventeen.
6
7 PRESENT:
8 DENNIS JACOBS,
9 PETER W. HALL,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _____________________________________
13 SHANGBIN GONG,
14 Petitioner,
15
16 v. 16-2052
17 NAC
18 JEFFERSON B. SESSIONS, III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Holly M. Smith,
27 Senior Litigation Counsel; Craig
28 A. Newell, Jr., Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
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 Shangbin Gong, a native and citizen of the
6 People’s Republic of China, seeks review of a June 3, 2016,
7 decision of the BIA, affirming an April 24, 2015, decision of
8 an Immigration Judge (“IJ”) denying Gong’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Shangbin Gong, No.
11 A206 560 419 (B.I.A. June 3, 2016), aff’g No. A206 560 419
12 (Immig. Ct. N.Y. City Apr. 24, 2015). 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 have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
18 F.3d 524, 528 (2d Cir. 2006). We review the agency’s
19 adverse credibility determination for substantial evidence.
20 See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534
21 F.3d 162, 165-66 (2d Cir. 2008).
22
2
1 For asylum applications like Gong’s, governed by the
2 REAL ID Act, the agency may, “[c]onsidering the totality of
3 the circumstances,” base a credibility finding on an
4 applicant’s “demeanor, candor, or responsiveness,” and on
5 inconsistencies in an applicant’s statements and evidence.
6 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
7 163-64. “We defer . . . to an IJ’s credibility
8 determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia
11
Lin, 534 F.3d at 167. Substantial evidence supports the
12 adverse credibility determination here.
13 The crux of Gong’s claim is that he was persecuted and
14 fears persecution in China because he sent a letter to the
15 government and the media suggesting five points to reform
16 government institutions and combat corruption. The agency
17 reasonably relied on inconsistencies between Gong’s
18 testimony, application, and his wife’s letter. See 8
19 U.S.C. § 1158(b)(1)(B)(iii). The inconsistencies are
20 reflected in the record and concern the contents of the
21 letter and events on the day of his arrest. See Xian Tuan
22 Ye v. Dep’t of Homeland Security,
446 F.3d 289, 295 (2d
3
1 Cir. 2006) (concluding that “a material inconsistency”
2 relating to “the very persecution from which [the
3 applicant] sought asylum, . . . afforded substantial
4 evidence to support the adverse credibility finding”
5 (internal quotation marks and citation omitted)). For
6 example, on cross examination, Gong testified that his
7 letter identified specific instances of corruption at his
8 workplace, but neither his application nor direct testimony
9 included that information. In addition, he explained that
10 he had not produced a copy of the letter because police
11 searched his home and seized his computer, but his wife’s
12 letter omitted these facts entirely. Given that these
13 omissions or inconsistencies go directly to the motivation
14 for Gong’s arrest and to events on the day of his arrest,
15 the agency was not required to accept his explanations that
16 he did not know to include such details or that his wife
17 forgot about the search. See Majidi v. Gonzales, 430 F.3d
18 77, 80 (2d Cir. 2005) (“A petitioner must do more than
19 offer a plausible explanation for his inconsistent
20 statements to secure relief; he must demonstrate that a
21 reasonable fact-finder would be compelled to credit his
22 testimony.” (internal quotation marks omitted)).
4
1 The adverse credibility determination is bolstered by
2 the agency’s demeanor finding. We defer to the demeanor
3 finding, particularly given the evidence of Gong’s pauses
4 and difficulty answering questions or providing
5 explanations for inconsistencies. Majidi, 430 F.3d at 81
6 n.1; Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 109
7 (2d Cir. 2006).
8 Given the multiple inconsistencies and the demeanor
9 finding, the totality of the circumstances supports the
10 adverse credibility determination. Xiu Xia
Lin, 534 F.3d at
11 167. The adverse credibility determination is dispositive
12 of asylum, withholding of removal, and CAT relief because all
13 three forms of relief are based on the same factual predicate.
14 Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of removal
17 that the Court previously granted in this petition is VACATED,
18 and any pending motion for a stay of removal in this petition
19 is DISMISSED as moot. Any pending request for oral argument
20
21
22
5
1
2 in this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
6
