Filed: Jan. 24, 2018
Latest Update: Mar. 03, 2020
Summary: 16-1982 Wang v. Sessions BIA Vomacka, IJ A087 766 028 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: 16-1982 Wang v. Sessions BIA Vomacka, IJ A087 766 028 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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16-1982
Wang v. Sessions
BIA
Vomacka, IJ
A087 766 028
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
24th day of January, two thousand eighteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
FENG YAN WANG, AKA TENGXIANG ZHENG,
Petitioner,
v. 16-1982
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jay Ho Lee, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Stephen J. Flynn,
Assistant Director; Lynda A. Do,
Attorney; Robert Michael Stalzer,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Feng Yan Wang, a native and citizen of the
People’s Republic of China, seeks review of a June 13, 2016,
decision of the BIA affirming an August 20, 2015, 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 Feng Yan Wang, No. A087 766 028
(B.I.A. June 13, 2016), aff’g No. A087 766 028 (Immig. Ct. N.Y.
City Aug. 20, 2015). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
In lieu of filing a brief, the Government moves for summary
denial of Wang’s petition for review. Summary denial is
warranted only if a petition is frivolous, Pillay v. INS, 45
F.3d 14, 17 (2d Cir. 1995), and Wang has filed her merits brief.
Accordingly, we treat the Government’s motion as a response to
that brief, and deny the petition.
Under the circumstances of this case, we have reviewed the
IJ’s decision as supplemented and modified by the BIA. See Wala
2
v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007); Xue Hong Yang v.
U.S. Dep’t of Justice,
426 F.3d 520, 522 (2d Cir. 2005). We
review the adverse credibility determination for substantial
evidence. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
“[c]onsidering the totality of the circumstances,” base an
adverse credibility determination on discrepancies between an
applicant’s oral and written statements, between an applicant’s
and her witness’s testimony, or between an applicant’s
testimony and other record evidence. 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64. “An
applicant’s failure to corroborate . . . her testimony may bear
on credibility, because the absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question.” Biao Yang v. Gonzales,
496
F.3d 268, 273 (2d Cir. 2007). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia
Lin, 534 F.3d at 167.
The BIA emphasized two discrepancies that, along with the
lack of reliable corroborating evidence, provide substantial
3
evidence for the adverse credibility ruling. First, the agency
reasonably relied on Wang’s conflicting descriptions of her
mistreatment in detention. See 8 U.S.C. § 1158(b)(1)(B)(iii).
In her 2010 credible fear interview with an asylum officer, Wang
stated that officers pulled her hair and slapped her face. When
asked if anything else happened while she was detained, Wang
said no. However, Wang’s asylum application and testimony
described multiple severe beatings during her three days in
detention, resulting in bruises all over her body. While it
is reasonable to assume that an alien’s credible fear interview
will be less detailed than her asylum application and hearing
testimony, see Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir.
2009), Wang’s credible fear interview omitted significant
details regarding her beatings, despite her being asked to add
to her statement, and presented materially different accounts
of her mistreatment, see Ramsameachire v. Ashcroft,
357 F.3d
169, 180-81 (2d Cir. 2004) (holding that where initial statement
and later testimony “present materially different accounts of
. . . persecution . . . the inconsistencies may render the
alien’s testimony incredible.”). The IJ reasonably relied on
Wang’s omission from her credible fear interview of any
4
description of the severe harm she claims to have suffered in
her asylum application and later testimony. See Xiu Xia Lin,
534 F.3d at 166 n.3 (“An inconsistency and an omission
are . . . functionally equivalent.”).
Wang’s argument that the record of the credible fear
interview was not reliable is unexhausted because Wang did not
object to the admission of the credible fear record or raise
any concerns about its reliability before the IJ or the BIA.
Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (requiring
petitioner to raise issues to the BIA in order to preserve them
for judicial review).
The agency also reasonably relied on Wang’s varying
descriptions of what she was doing when she was arrested. At
her credible fear interview, Wang said that she and the others
had just started reciting the Lord’s Prayer when the police
arrived. However, her application stated that they were
reading the Bible when the police arrived. At the hearing, Wang
initially testified that the police arrived during a prayer;
but on cross examination, she testified that they had not yet
started praying and were reading the Bible. Wang’s explanation
that the prayer and reading were simultaneous does not account
5
for her testimony that the group had not yet started praying
when the police arrived. See Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005) (“A petitioner must do more than offer a
plausible explanation for [her] inconsistent statements to
secure relief; [s]he must demonstrate that a reasonable
fact-finder would be compelled to credit his testimony.”
(internal quotation marks omitted)). In addition, Wang’s
story differed in another aspect: Wang testified that she
learned the prayer when she read it in the Bible at that meeting;
but at her credible fear interview, she said she had not read
the Bible.
These discrepancies combine to provide substantial support
for the determination that Wang is not credible because they
call into question both whether she attended an underground
church and whether she was mistreated in detention. Xiu Xia
Lin, 534 F.3d 166-67 & n.3; Xian Tuan Ye v. Dep’t of Homeland
Sec.,
446 F.3d 289, 295 (2d Cir. 2006) (holding that a single
material inconsistency relating to the persecution from which
an applicant sought asylum provided substantial evidence for
an adverse credibility determination).
6
The agency reasonably concluded that Wang’s corroborating
evidence did not rehabilitate her credibility. Biao Yang, 496
F.3d at 273. The agency was not required to credit the letter
from Wang’s church, as the author did not appear for cross
examination and the letter suggested that Wang attended the
church during a year that she lived outside of New York. Xiao
Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir.
2006) (weight afforded to evidence “lies largely within the
discretion of the IJ” (internal quotation marks and alteration
omitted)). Wang’s husband’s testimony added inconsistency
regarding the frequency of Wang’s church attendance, and the
agency reasonably gave diminished weight to the letters from
Wang’s aunt and friend in China because they were authored by
witnesses not available for cross examination. Y.C. v. Holder,
741 F.3d 324, 334 (2d Cir. 2013).
Given the discrepancies relating to Wang’s church
activities and mistreatment in China, as well as her lack of
rehabilitative corroborating evidence, the totality of the
circumstances supports the agency’s adverse credibility
determination. Xiu Xia Lin, 534 F.3d at 166-67; Xian Tuan
Ye,
446 F.3d at 295-96; Biao
Yang, 496 F.3d at 273. Because Wang’s
7
claims were all based on the same factual predicate, 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, the Government’s
motion for summary denial is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
8
