Filed: Sep. 17, 2020
Latest Update: Sep. 17, 2020
Summary: 18-1476 Dong v. Barr BIA Vomacka, IJ A200 829 361 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 NOTAT
Summary: 18-1476 Dong v. Barr BIA Vomacka, IJ A200 829 361 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 NOTATI..
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18-1476
Dong v. Barr
BIA
Vomacka, IJ
A200 829 361
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 17th day of September, two thousand twenty.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DENNY CHIN,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 CAI YUN DONG,
14 Petitioner,
15
16 v. 18-1476
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, NY.
24
25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
26 Attorney General; Jeffery R.
27 Leist, Senior Litigation Counsel;
28 Lance L. Jolley, 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 Cai Yun Dong, a native and citizen of the
6 People’s Republic of China, seeks review of an April 18,
7 2018, decision of the BIA affirming an August 7, 2015,
8 decision of an Immigration Judge (“IJ”) denying Dong’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Cai
11 Yun Dong, No. A200 829 361 (B.I.A. Apr. 18, 2018), aff’g
12 No. A 200 829 361 (Immig. Ct. N.Y. City Aug. 7, 2015). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history.
15 Under the circumstances, we consider both the IJ’s and
16 the BIA’s opinions “for the sake of completeness.”
17 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
18 Cir. 2006). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
20 Sessions,
891 F.3d 67, 76 (2d Cir. 2018); Santoso v.
21 Holder,
580 F.3d 110, 111 (2d Cir. 2009). The agency
2
1 concluded that Dong was not credible as to her allegation
2 of past persecution on account of her practice of
3 Christianity and that she failed to establish a pattern or
4 practice of persecution of Christians as needed to state a
5 claim for relief from removal based on her practice of
6 Christianity in the United States.
7 A. Adverse Credibility Determination
8 “Considering the totality of the circumstances, and all
9 relevant factors, a trier of fact may base a credibility
10 determination on the demeanor, candor, or responsiveness of
11 the applicant or witness, the inherent plausibility of the
12 applicant’s or witness’s account, the consistency between
13 the applicant’s or witness’s written and oral statements
14 . . . , the internal consistency of each such statement
15 . . . without regard to whether an inconsistency,
16 inaccuracy, or falsehood goes to the heart of the
17 applicant’s claim, or any other relevant factor.” 8 U.S.C.
18 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
19 F.3d 162, 163–64 (2d Cir. 2008). “We defer . . . to an
20 IJ’s credibility determination unless, from the totality of
21 the circumstances, it is plain that no reasonable fact-
3
1 finder could make such an adverse credibility ruling.” Xiu
2 Xia Lin, 534 F.3d at 167; accord Hong Fei
Gao, 891 F.3d at
3 76. Substantial evidence supports the agency’s
4 determination that Dong was not credible as to her claim
5 that police had arrested and beaten her and would arrest
6 her in the future on account of her unauthorized religious
7 practice in China.
8 The IJ reasonably found that Dong gave the impression
9 that her testimony was memorized rather than based on
10 experience. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
11 Majidi v. Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005).
12 That finding is supported by the record. Dong repeatedly
13 changed dates stating that she had given the “wrong answer”
14 rather than indicating that she had trouble remembering the
15 dates. Further, in response to questions posed by her
16 attorney, Dong’s testimony was clear and concise, but she
17 became evasive on cross-examination. Finally, although not
18 discernable from the written transcript, the IJ observed
19 that Dong testified about the alleged persecution she
20 suffered with a flat affect. Because the IJ’s demeanor
21 finding is supported by the record and the IJ was “in the
4
1 best position to evaluate whether apparent problems in
2 [Dong’s] testimony suggest[ed] a lack of credibility,” we
3 afford “particular deference” to that finding. Jin Chen v.
4 U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005).
5 The IJ’s demeanor finding and the adverse credibility
6 determination as a whole are further supported by specific
7 examples of record inconsistencies. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of Justice,
9
453 F.3d 99, 109 (2d Cir. 2006) (“We can be still more
10 confident in our review of observations about an
11 applicant’s demeanor where, as here, they are supported by
12 specific examples of inconsistent testimony.”). For
13 example, Dong provided different descriptions of the
14 beatings she purportedly suffered, she made contradictory
15 statements regarding whether she had a Chinese passport,
16 her testimony that police were harassing her parents and
17 looking for her was inconsistent with her testimony that
18 she departed China without difficulty using her own
19 passport and that she obtained a new Chinese passport
20 without issue within months of her arrival in the United
21 States, and she provided inconsistent evidence as to
5
1 whether she belonged to a formal church in China.
2 Given the demeanor and inconsistency findings, the
3 agency’s adverse credibility determination is supported by
4 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii).
5 That determination is dispositive of asylum, withholding of
6 removal, and CAT relief insofar as those claims were based
7 on Dong’s assertion that officials persecuted and continued
8 to look for her for practicing her religion in China. See
9 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
10 B. Burden of Proof
11 Because Dong was not credible as to her claim of past
12 persecution, she had the burden to establish a well-founded
13 fear persecution based on her religion by showing a
14 reasonable possibility that she would be singled out for
15 persecution or that there was a pattern or practice of
16 persecution of similarly situated Christians. See 8 C.F.R.
17 § 1208.13(b)(2)(iii). Dong argued only that she
18 established a pattern or practice of persecution.
19 The agency did not err in finding that Dong failed to
20 establish a pattern or practice of persecution of similarly
21 situated Christians. The country conditions evidence in
6
1 the record shows that tens of millions of Christians
2 practice in unregistered churches in China and that in some
3 areas they do so without interference, and thus does not
4 establish the systemic or pervasive persecution of
5 similarly situated Christians sufficient to demonstrate a
6 pattern and practice of persecution. See 8 C.F.R.
7 § 1208.13(b)(2)(iii); see also Santoso, 580 F.3d at 112 &
8 n.1; In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005).
9 Accordingly, because Dong failed to demonstrate a well-
10 founded fear of persecution on account of her religion, the
11 agency did not err in denying asylum, withholding of
12 removal, and CAT relief to that extent. See Paul,
444 F.3d
13 at 156–57.
14 For the foregoing reasons, the petition for review is
15 DENIED. All pending motions and applications are DENIED
16 and stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
20
7
