17-1775 Deng v. Whitaker BIA Vomacka, IJ A201 119 201 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 11th day of February, two thousand 5 nineteen. 6 7 PRESENT: 8 ROBERT D. SACK, 9 DEBRA ANN LIVINGSTON, 10 CHRISTOPHER F. DRONEY, 11 Circuit Judges. 12 _____________________________________ 13 MING DENG, 14 Petitioner, 15 16 v. 17-1775 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary Pogil, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; John S. Hogan, 27 Assistant Director; Mona Maria 28 Yousif, 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
4 is DENIED.
5 Petitioner Ming Deng, a native and citizen of the
6 People’s Republic of China, seeks review of a May 11, 2017,
7 decision of the BIA affirming a January 12, 2016, decision of
8 an Immigration Judge (“IJ”) denying Deng’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ming Deng, No. A
11 201 119 201 (B.I.A. May 11, 2017), aff’g No. A 201 119 201
12 (Immig. Ct. N.Y. City Jan. 12, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed the IJ’s decision as modified by the
16 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
17 520, 522 (2d Cir. 2005). As an initial matter, our
18 jurisdiction to review the agency’s denial of asylum as
19 untimely or its conclusion that Deng failed to establish
20 changed circumstances is limited to “constitutional claims or
21 questions of law.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
22 Deng has identified no error of law, but simply argues that
2 1 the discovery of the religious materials she sent her mother
2 in 2010 was a changed circumstance. But given that Deng
3 alleged past persecution in China based on her 2004 arrest,
4 the discovery of those materials was not a “changed
5 circumstance which materially affect[ed] [her] eligibility
6 for asylum.” 8 U.S.C. § 1158(a)(2)(D). Accordingly, we
7 review only the denial of withholding of removal and CAT
8 relief.
9 The agency denied withholding of removal and CAT relief
10 on credibility grounds. We review adverse credibility
11 determinations under a substantial evidence standard. See
12 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
13 162, 165-66 (2d Cir. 2008). The governing REAL ID Act
14 credibility standard provides as follows:
15 Considering the totality of the circumstances, and 16 all relevant factors, a trier of fact may base a 17 credibility determination on . . . the inherent 18 plausibility of the applicant’s or witness’s 19 account, the consistency between the applicant’s or 20 witness’s written and oral statements . . . [,] the 21 internal consistency of each such statement, the 22 consistency of such statements with other evidence 23 of record . . . [,] and any inaccuracies or 24 falsehoods in such statements, without regard to 25 whether an inconsistency, inaccuracy, or falsehood 26 goes to the heart of the applicant’s claim, or any 27 other relevant factor. 28 29 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
3 1 credibility determination unless . . . it is plain that no
2 reasonable fact-finder could make such an adverse credibility
3 ruling.” Xiu Xia Lin, 534 F.3d at 167; see 8 U.S.C.
4 § 1252(b)(4)(B).
5 The agency reasonably relied on Deng’s inconsistent
6 descriptions of her 2004 arrest, which was her sole allegation
7 of past persecution. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xian
8 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.
9 2006). Deng’s application stated that the police caught
10 eight church members (including Deng), but released two
11 because they were handicapped, and took the remaining six
12 church members to the police station. However, Deng
13 testified repeatedly that eight church members were arrested,
14 taken to the police station, and detained between two days
15 and two weeks. Although when specifically confronted with
16 her written statement, Deng added that two handicapped church
17 members were released at the police station, this did not
18 resolve the inconsistency given that her application
19 reflected that they were released before being taken to the
20 station. Nor was the IJ required to accept Deng’s
21 speculation that the discrepancy was caused by a translation
22 error in her written statement because Deng never submitted
4 1 a corrected translation. Majidi v. Gonzales, 430 F.3d 77,
2 80-81 (2d Cir. 2005) (“A petitioner must do more than offer
3 a plausible explanation for his inconsistent statements to
4 secure relief; he must demonstrate that a reasonable fact-
5 finder would be compelled to credit his testimony.” (internal
6 quotations omitted)).
7 Deng’s failure to attend church for five years after
8 moving to the United States bolsters the adverse credibility
9 ruling because it undermines the credibility of her
10 allegations that she was a practicing Christian before 2010,
11 risked arrest to attend church in China, and left China at
12 least in part to seek religious freedom. Wensheng Yan v.
13 Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (“It is well settled
14 that, in assessing the credibility of an asylum applicant’s
15 testimony, an IJ is entitled to consider whether the
16 applicant’s story is inherently implausible.”). The IJ
17 considered and reasonably rejected Deng’s explanations for
18 her failure to attend church until 2010 because there were
19 churches with Mandarin language services in the cities where
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17-1775 Deng v. Whitaker BIA Vomacka, IJ A201 119 201 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 11th day of February, two thousand 5 nineteen. 6 7 PRESENT: 8 ROBERT D. SACK, 9 DEBRA ANN LIVINGSTON, 10 CHRISTOPHER F. DRONEY, 11 Circuit Judges. 12 _____________________________________ 13 MING DENG, 14 Petitioner, 15 16 v. 17-1775 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary Pogil, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; John S. Hogan, 27 Assistant Director; Mona Maria 28 Yousif, 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
4 is DENIED.
5 Petitioner Ming Deng, a native and citizen of the
6 People’s Republic of China, seeks review of a May 11, 2017,
7 decision of the BIA affirming a January 12, 2016, decision of
8 an Immigration Judge (“IJ”) denying Deng’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ming Deng, No. A
11 201 119 201 (B.I.A. May 11, 2017), aff’g No. A 201 119 201
12 (Immig. Ct. N.Y. City Jan. 12, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed the IJ’s decision as modified by the
16 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
17 520, 522 (2d Cir. 2005). As an initial matter, our
18 jurisdiction to review the agency’s denial of asylum as
19 untimely or its conclusion that Deng failed to establish
20 changed circumstances is limited to “constitutional claims or
21 questions of law.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
22 Deng has identified no error of law, but simply argues that
2 1 the discovery of the religious materials she sent her mother
2 in 2010 was a changed circumstance. But given that Deng
3 alleged past persecution in China based on her 2004 arrest,
4 the discovery of those materials was not a “changed
5 circumstance which materially affect[ed] [her] eligibility
6 for asylum.” 8 U.S.C. § 1158(a)(2)(D). Accordingly, we
7 review only the denial of withholding of removal and CAT
8 relief.
9 The agency denied withholding of removal and CAT relief
10 on credibility grounds. We review adverse credibility
11 determinations under a substantial evidence standard. See
12 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
13 162, 165-66 (2d Cir. 2008). The governing REAL ID Act
14 credibility standard provides as follows:
15 Considering the totality of the circumstances, and 16 all relevant factors, a trier of fact may base a 17 credibility determination on . . . the inherent 18 plausibility of the applicant’s or witness’s 19 account, the consistency between the applicant’s or 20 witness’s written and oral statements . . . [,] the 21 internal consistency of each such statement, the 22 consistency of such statements with other evidence 23 of record . . . [,] and any inaccuracies or 24 falsehoods in such statements, without regard to 25 whether an inconsistency, inaccuracy, or falsehood 26 goes to the heart of the applicant’s claim, or any 27 other relevant factor. 28 29 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
3 1 credibility determination unless . . . it is plain that no
2 reasonable fact-finder could make such an adverse credibility
3 ruling.” Xiu Xia Lin, 534 F.3d at 167; see 8 U.S.C.
4 § 1252(b)(4)(B).
5 The agency reasonably relied on Deng’s inconsistent
6 descriptions of her 2004 arrest, which was her sole allegation
7 of past persecution. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xian
8 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.
9 2006). Deng’s application stated that the police caught
10 eight church members (including Deng), but released two
11 because they were handicapped, and took the remaining six
12 church members to the police station. However, Deng
13 testified repeatedly that eight church members were arrested,
14 taken to the police station, and detained between two days
15 and two weeks. Although when specifically confronted with
16 her written statement, Deng added that two handicapped church
17 members were released at the police station, this did not
18 resolve the inconsistency given that her application
19 reflected that they were released before being taken to the
20 station. Nor was the IJ required to accept Deng’s
21 speculation that the discrepancy was caused by a translation
22 error in her written statement because Deng never submitted
4 1 a corrected translation. Majidi v. Gonzales, 430 F.3d 77,
2 80-81 (2d Cir. 2005) (“A petitioner must do more than offer
3 a plausible explanation for his inconsistent statements to
4 secure relief; he must demonstrate that a reasonable fact-
5 finder would be compelled to credit his testimony.” (internal
6 quotations omitted)).
7 Deng’s failure to attend church for five years after
8 moving to the United States bolsters the adverse credibility
9 ruling because it undermines the credibility of her
10 allegations that she was a practicing Christian before 2010,
11 risked arrest to attend church in China, and left China at
12 least in part to seek religious freedom. Wensheng Yan v.
13 Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (“It is well settled
14 that, in assessing the credibility of an asylum applicant’s
15 testimony, an IJ is entitled to consider whether the
16 applicant’s story is inherently implausible.”). The IJ
17 considered and reasonably rejected Deng’s explanations for
18 her failure to attend church until 2010 because there were
19 churches with Mandarin language services in the cities where
20 she was living and her testimony that she could not have
21 outside contact while working as a babysitter in New York
22 City from 2006 until 2009 was undermined by her testimony
5 1 that she had several part-time jobs for different families.
2 Moreover, the five-year gap in Deng’s church attendance is
3 particularly suspicious because she began attending church
4 one month before she applied for asylum. Cf. Y.C. v. Holder,
5 741 F.3d 324, 338 (2d Cir. 2013) (observing that claims based
6 on activities in the United States are “especially easy to
7 manufacture”).
8 The agency also reasonably determined that the country
9 conditions evidence reflected that treatment of Christians
10 varied by region and did not report any incidents of
11 mistreatment in Deng’s home province of Hubei. Jian Hui Shao
12 v. Mukasey, 546 F.3d 138, 159-62, 174 (2d Cir. 2008)
13 (upholding BIA’s requirement that applicant demonstrate that
14 officials in his local area enforce a government policy when
15 evidence demonstrates local variations in enforcement of that
16 policy). In addition to failing as an independent pattern
17 or practice claim, see 8 C.F.R. § 1208.16(b)(2)(i)-(ii), the
18 lack of any evidence that Christians who attended
19 unregistered churches in Hubei province were arrested or
20 mistreated supports the adverse credibility determination,
21 see Wensheng Yan, 509 F.3d at 66; Biao Yang v. Gonzales, 496
22 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
6 1 corroborate his or her testimony may bear on credibility,
2 because the absence of corroboration in general makes an
3 applicant unable to rehabilitate testimony that has already
4 been called into question.”).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court