Filed: Nov. 29, 2017
Latest Update: Mar. 03, 2020
Summary: 16-2644 Wang v. Sessions BIA Laforest, IJ A205 270 818 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: 16-2644 Wang v. Sessions BIA Laforest, IJ A205 270 818 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..
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16-2644
Wang v. Sessions
BIA
Laforest, IJ
A205 270 818
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the29th
4 29th day of November, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 ZONG YI WANG,
14 Petitioner,
15
16 v. 16-2644
17 NAC
18 JEFFERSON B. SESSIONS, III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Marta Bachynska, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Anthony C. Payne,
27 Assistant Director; Kathleen Kelly
28 Volkert, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 is
4 DENIED.
5 Petitioner Zong Yi Wang, a native and citizen of the
6 People’s Republic of China, seeks review of a July 6, 2016,
7 decision of the BIA affirming a June 17, 2015, decision of an
8 Immigration Judge (“IJ”) denying Wang’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Zong Yi Wang, No. A 205 270 818 (B.I.A.
11 July 6, 2016), aff’g No. A 205 270 818 (Immig. Ct. N.Y. City June
12 17, 2015). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and BIA’s decisions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
19 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
20 “Considering the totality of the circumstances, and all
21 relevant factors, [an IJ] may base a credibility determination
22 on the demeanor, candor, or responsiveness of the applicant
2
1 . . ., the consistency between the applicant’s . . . written
2 and oral statements . . . , the internal consistency of each
3 such statement, [and] the consistency of such statements with
4 other evidence of record . . . without regard to whether an
5 inconsistency, inaccuracy, or falsehood goes to the heart of
6 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
7 also Xiu Xia Lin, 534 F.3d at 163-64, 167. “We defer . . . to
8 an IJ’s credibility determination unless . . . it is plain that
9 no reasonable fact-finder could make such an adverse
10 credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
11 Substantial evidence supports the agency’s determination that
12 Wang was not credible.
13 “We give particular deference to credibility
14 determinations that are based on the adjudicator’s observation
15 of the applicant’s demeanor, in recognition of the fact that
16 the IJ’s ability to observe the witness’s demeanor places her
17 in the best position to evaluate whether apparent problems in
18 the witness’s testimony suggest a lack of credibility or,
19 rather, can be attributed to an innocent cause such as
20 difficulty understanding the question.” Jin Chen v. U.S. Dep’t
21 of Justice,
426 F.3d 104, 113 (2d Cir. 2005). We defer to the
22 agency’s demeanor finding here because the IJ provided several
3
1 specific examples of Wang’s hesitancy and nonresponsive
2 answers, and these examples are supported by the record. Cf.
3 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
4 2006) (“We can be still more confident in our review of
5 observations about an applicant’s demeanor where, as here, they
6 are supported by specific examples of inconsistent
7 testimony.”).
8 Wang took long pauses and had difficulty answering
9 questions on direct and cross examination regarding his
10 persecution, his church attendance in China, his police
11 interrogation, and the sermons he heard at his churches in China
12 and the United States. Wang also testified inconsistently,
13 first stating that, at the time of his arrest, his only son was
14 almost one year old, but then acknowledging that his son was
15 born four days before the alleged arrest. The agency
16 reasonably concluded that this inconsistency called into
17 question whether Wang had actually lived through the events he
18 described. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
19 534 F.3d at 166-67. And contrary to Wang’s argument that he
20 had no opportunity to explain this inconsistency, the record
21 reflects that Government counsel confronted Wang about it, and
22 his explanation was that he had trouble remembering. The IJ
4
1 was not compelled to accept that explanation, particularly
2 because Wang also testified that it was a traumatic experience
3 to be separated from his newborn child while he was detained.
4 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
5 must do more than offer a plausible explanation for his
6 inconsistent statements to secure relief; he must demonstrate
7 that a reasonable fact-finder would be compelled to credit his
8 testimony.” (quotation marks omitted)).
9 Wang now argues, for the first time, that his mistake is
10 attributable to the Chinese practice of considering a newborn
11 to be a year old. As the Government argues, this explanation
12 was not exhausted because neither Wang nor his attorney provided
13 this explanation to the IJ or on appeal to the BIA. Foster v.
14 U.S. INS,
376 F.3d 75, 78 (2d Cir. 2004). And Wang has not
15 provided an affidavit or objective evidence to support his
16 attorney’s assertion. See INS v. Phinpathya,
464 U.S. 183, 188
17 n.6 (1984) (an attorney’s statements in a brief are not
18 evidence). Moreover, even crediting the theory, the
19 explanation does not work because it does not resolve why Wang
20 gave his son’s age as almost one year. See Majidi,
430 F.3d
21 at 80. Nor does Wang’s explanation (that he was nervous and made
22 innocent mistakes) compel a contrary conclusion.
Id.
5
1 In sum, Wang’s hesitancy, lack of responsiveness, and
2 inconsistency constitute substantial evidence for the adverse
3 credibility determination. See 8 U.S.C.
4 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167. The
5 adverse credibility determination is dispositive of asylum,
6 withholding of removal, and CAT relief because all three claims
7 are based on the same factual predicate. See Paul v. Gonzales,
8
444 F.3d 148, 156-57 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
6
