Filed: Aug. 18, 2020
Latest Update: Aug. 18, 2020
Summary: 18-1704 Dong v. Barr BIA Poczter, IJ A208 926 041 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: 18-1704 Dong v. Barr BIA Poczter, IJ A208 926 041 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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18-1704
Dong v. Barr
BIA
Poczter, IJ
A208 926 041
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 18th day of August, two thousand twenty.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 SHENGLIN DONG,
14 Petitioner,
15
16 v. 18-1704
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Yok-seung Chiu, Esq., Law Office
24 of John Yong, PC, New York, NY.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Jessica E.
28 Burns, Senior Litigation Counsel;
1 Juria L. Jones, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Shenglin Dong, a native and citizen of the
10 People’s Republic of China, seeks review of a May 25, 2018
11 decision of the BIA affirming a June 14, 2017 decision of an
12 Immigration Judge (“IJ”) denying Dong’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Shenglin Dong, No.
15 A 208 926 041 (B.I.A. May 25, 2018), aff’g No. A 208 926 041
16 (Immig. Ct. N.Y.C. June 14, 2017). We assume the parties’
17 familiarity with the underlying facts and procedural history.
18 We have reviewed both the IJ’s and the BIA’s opinions
19 “for the sake of completeness.” Wangchuck v. Dep’t of
20 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
21 standards of review are well established. See 8 U.S.C.
22 § 1252(b)(4); Hong Fei Gao v. Sessions,
891 F.3d 67, 76 (2d
23 Cir. 2018); Y.C. v. Holder,
741 F.3d 324, 332 (2d Cir. 2013).
24 The agency may, “[c]onsidering the totality of the
2
1 circumstances . . . base a credibility determination on the
2 demeanor, candor, or responsiveness of the applicant,” the
3 plausibility of his account, and inconsistencies in his
4 statements or between his statements and other evidence,
5 without regard to whether they go “to the heart of the
6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
7 defer . . . to an IJ’s credibility determination unless, from
8 the totality of the circumstances, it is plain that no
9 reasonable fact-finder could make such an adverse credibility
10 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
11 2008); accord Hong Fei
Gao, 891 F.3d at 76. The agency’s
12 adverse credibility determination is supported by substantial
13 evidence.
14 First, the agency reasonably relied on an inconsistency
15 between Dong’s testimony and written statement regarding
16 whether the January 2016 underground church service where he
17 was arrested was the first religious gathering he had
18 attended. Although Dong’s explanation that he believed that
19 his attorney was asking about the first service that was
20 raided by the police is plausible, the agency’s conclusion
21 that Dong understood the question and became confused about
22 the timeline of alleged events in a manner that undermined
3
1 his credibility is also a reasonable interpretation, and “[a]
2 petitioner must do more than offer a plausible explanation
3 for his inconsistent statements to secure relief; he must
4 demonstrate that a reasonable fact-finder would be compelled
5 to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77,
6 80 (2d Cir. 2005) (internal quotation marks omitted). The
7 agency also reasonably concluded that this inconsistency was
8 significant in the totality of the circumstances because it
9 involved the timeline of events for Dong’s claim, which was
10 based on his practice of Christianity during a brief period
11 from November 2015 to February 2016. See Xian Tuan Ye v.
12 Dep’t of Homeland Sec.,
446 F.3d 289, 295 (2d Cir. 2006)
13 (holding that material inconsistency regarding basis of
14 applicant’s asylum claim is substantial evidence for adverse
15 credibility determination).
16 Second, the agency reasonably relied on significant
17 omissions from Dong’s written statement and a letter from his
18 mother. See Hong Fei
Gao, 891 F.3d at 81 (noting that “an
19 omission by a third party may form a basis for an adverse
20 credibility determination”). In his written statement, Dong
21 claimed the police required him to report back for supervision
22 following his arrest and that his parents warned him that the
4
1 police would harm him if he returned because he had failed to
2 report. During his testimony, Dong added that his mother had
3 told him that the police had “frequently” come to her home
4 looking for him after he left China because he had not
5 reported as required. Certified Administrative Record
6 (“CAR”) at 13. The letter from Dong’s mother did not mention
7 the reporting requirement or the repeated police visits to
8 her home. While Dong is correct that these omissions did not
9 directly contradict his testimony, the agency reasonably
10 concluded that these omissions undermined credibility because
11 they involved facts that Dong and his mother would reasonably
12 have been expected to include. See Hong Fei Gao, 891 F.3d
13 at 78 (“[T]he probative value of a witness’s . . . silence on
14 particular facts depends on whether those facts are ones the
15 witness would reasonably have been expected to disclose.”).
16 Dong did not provide a compelling explanation for these
17 omissions. See
Majidi, 430 F.3d at 80.
18 Third, the agency reasonably concluded that the absence
19 of reliable corroborating evidence further undermined Dong’s
20 credibility. An asylum applicant’s failure to corroborate
21 his testimony may bear on his credibility “because the absence
22 of corroboration in general makes an applicant unable to
5
1 rehabilitate testimony that has already been called into
2 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
3 2007). As the IJ noted, none of the documentary evidence
4 corroborated Dong’s testimony that he was required to report
5 to the police after being released from detention, or that
6 the police went to his family home looking for him.
7 Finally, on appeal to the BIA, Dong argued that some of
8 the discrepancies and omissions in the evidence were
9 attributable to his prior attorney, who asked “confusing”
10 questions on direct examination and failed to advise him to
11 supplement his statement. CAR at 4. The BIA reasonably
12 rejected this argument because Dong bore the burden to
13 establish that he was eligible for relief and he did not
14 comply with any of the procedural requirements for a claim of
15 ineffective assistance of counsel. See 8 U.S.C. §§
16 1158(b)(1)(B)(i), 1229a(c)(4)(A); Matter of Lozada, 19 I. &
17 N. Dec. 637 (B.I.A. 1988) (setting forth procedural
18 requirements for ineffective assistance of counsel claims);
19 see also Jian Yun Zheng v. U.S. Dep’t of Justice,
409 F.3d
20 43, 46–47 (2d Cir. 2005) (failure to substantially comply
21 with Lozada requirements constitutes forfeiture of an
22 ineffective assistance claim). Moreover, the transcript does
6
1 not support his claim that the question of whether he had
2 attended church services before his arrest was misleading.
3 Because all of Dong’s claims rested on the same
4 discredited testimony, the agency’s adverse credibility
5 determination is dispositive of all forms of relief, and we
6 do not reach the agency’s alternative holding that, even
7 assuming the credibility of Dong’s practice of Christianity
8 in the United States, he did not carry his burden to
9 demonstrate a well-founded fear of future persecution based
10 on that practice. See Paul v. Gonzales, 444 F.3d 148, 156–
11 57 (2d Cir. 2006); INS v. Bagamasbad,
429 U.S. 24, 25 (1976)
12 (“As a general rule courts and agencies are not required to
13 make findings on issues the decision of which is unnecessary
14 to the results they reach.”).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
7
