19-134 Jiang v. Garland BIA Vomacka, IJ A206 567 109 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 6th day of April, two thousand twenty-one. 5 6 PRESENT: 7 ROBERT D. SACK, 8 DENNY CHIN, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 JINGLIANG JIANG, 14 Petitioner, 15 16 v. 19-134 17 NAC 18 MERRICK B. GARLAND,UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 24 FOR PETITIONER: Vlad Kuzmin, New York, NY. 25
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Jeffery R. Leist, Senior 3 Litigation Counsel; Jessica D. 4 Strokus, Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Jingliang Jiang, a native and citizen of
13 China, seeks review of a December 14, 2018, decision of the
14 BIA affirming a November 17, 2017, decision of an Immigration
15 Judge (“IJ”) denying asylum, withholding of removal, and
16 protection under the Convention Against Torture (“CAT”). In
17 re Jingliang Jiang, No. A 206 567 109 (B.I.A. Dec. 14, 2018),
18 aff’g No. A 206 567 109 (Immig. Ct. N.Y. City Nov. 17, 2017).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history.
21 We have considered both the IJ’s and the BIA’s opinions
22 “for the sake of completeness.” Wangchuck v. Dep’t of
23 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). We
24 review adverse credibility determinations under the
25 substantial evidence standard and treat the agency’s findings 2 1 of fact as “conclusive unless any reasonable adjudicator
2 would be compelled to conclude to the contrary.” 8 U.S.C.
3 § 1252(b)(4)(B); see Hong Fei Gao v. Sessions, 891 F.3d 67,
4 76 (2d Cir. 2018). “Considering the totality of the
5 circumstances . . . a trier of fact may base a credibility
6 determination on the demeanor, candor, or responsiveness of
7 the applicant or witness, the inherent plausibility of the
8 applicant’s or witness’s account, the consistency between the
9 applicant’s or witness’s written and oral statements . . . ,
10 the internal consistency of each such statement, the
11 consistency of such statements with other evidence of record
12 . . . and any inaccuracies or falsehoods in such statements,
13 without regard to whether an inconsistency, inaccuracy, or
14 falsehood goes to the heart of the applicant's claim, or any
15 other relevant factor.” 8 U.S.C. § 1158(b)(B)(iii). “We
16 defer . . . to an IJ’s credibility determination unless, from
17 the totality of the circumstances, it is plain that no
18 reasonable fact-finder could make such an adverse credibility
19 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
20 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
21 evidence supports the adverse credibility determination.
3 1 The IJ reasonably relied on Jiang’s demeanor. See 8
2 U.S.C. § 1158(b)(1)(B)(iii). The IJ found that Jiang’s
3 testimony appeared to be “the product of rote memorization”
4 because he responded to the IJ’s questions by “reciting the
5 events in an almost identical way” to his written application.
6 We defer to this determination. See Majidi v. Gonzales, 430
7 F.3d 77, 81 n.1 (2d Cir. 2005) (explaining that “a fact-
8 finder who assesses testimony together with witness demeanor
9 is in the best position to discern . . . whether a witness
10 who hesitated in a response was nevertheless attempting
11 truthfully to recount what he recalled of key events or
12 struggling to remember the lines of a carefully crafted
13 script” (internal quotation marks and brackets omitted)); Jin
14 Chen v. U.S. Dep't of Justice, 426 F.3d 104, 113 (2d Cir.
15 2005) (giving “particular deference to credibility
16 determinations that are based on the adjudicator’s
17 observation of the applicant’s demeanor”). Moreover,
18 inconsistencies provide further support for the demeanor
19 finding and the adverse credibility determination as a whole.
20 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
21 Cir. 2006) (“We can be . . . more confident in our review of
4 1 observations about an applicant’s demeanor where . . . they
2 are supported by specific examples of inconsistent
3 testimony.”).
4 The record supports the IJ’s finding of inconsistencies
5 between Jiang’s testimony and documentary evidence regarding
6 his church attendance in the United States. Jiang testified
7 that he attended church “once every two weeks.” But the
8 letter from his church reflected that he attended church
9 roughly once every three weeks. The IJ was not required to
10 accept Jiang’s explanation that he sometimes forgot to scan
11 his card or arrived late because there was no evidence to
12 corroborate this system or that Jiang actually attended
13 services every two weeks. See Majidi, 430 F.3d at 80–81
14 (holding “petitioner must do more than offer a plausible
15 explanation for his inconsistent statements . . . he must
16 demonstrate that a reasonable fact-finder would be compelled
17 to credit his testimony.” (internal quotation marks
18 omitted)). As the IJ noted, Jiang’s evidence also implied
19 that his attendance fluctuated based on how it would affect
20 his asylum claim: he attended church almost weekly in the
21 five months leading to the filing of his application and his
5 1 asylum interview; but then his attendance decreased while he
2 awaited his hearing before the IJ. Cf. Y.C. v. Holder, 741
3 F.3d 324, 338 (2d Cir.
Free access — add to your briefcase to read the full text and ask questions with AI
19-134 Jiang v. Garland BIA Vomacka, IJ A206 567 109 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 6th day of April, two thousand twenty-one. 5 6 PRESENT: 7 ROBERT D. SACK, 8 DENNY CHIN, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 JINGLIANG JIANG, 14 Petitioner, 15 16 v. 19-134 17 NAC 18 MERRICK B. GARLAND,UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 24 FOR PETITIONER: Vlad Kuzmin, New York, NY. 25
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Jeffery R. Leist, Senior 3 Litigation Counsel; Jessica D. 4 Strokus, Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Jingliang Jiang, a native and citizen of
13 China, seeks review of a December 14, 2018, decision of the
14 BIA affirming a November 17, 2017, decision of an Immigration
15 Judge (“IJ”) denying asylum, withholding of removal, and
16 protection under the Convention Against Torture (“CAT”). In
17 re Jingliang Jiang, No. A 206 567 109 (B.I.A. Dec. 14, 2018),
18 aff’g No. A 206 567 109 (Immig. Ct. N.Y. City Nov. 17, 2017).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history.
21 We have considered both the IJ’s and the BIA’s opinions
22 “for the sake of completeness.” Wangchuck v. Dep’t of
23 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). We
24 review adverse credibility determinations under the
25 substantial evidence standard and treat the agency’s findings 2 1 of fact as “conclusive unless any reasonable adjudicator
2 would be compelled to conclude to the contrary.” 8 U.S.C.
3 § 1252(b)(4)(B); see Hong Fei Gao v. Sessions, 891 F.3d 67,
4 76 (2d Cir. 2018). “Considering the totality of the
5 circumstances . . . a trier of fact may base a credibility
6 determination on the demeanor, candor, or responsiveness of
7 the applicant or witness, the inherent plausibility of the
8 applicant’s or witness’s account, the consistency between the
9 applicant’s or witness’s written and oral statements . . . ,
10 the internal consistency of each such statement, the
11 consistency of such statements with other evidence of record
12 . . . and any inaccuracies or falsehoods in such statements,
13 without regard to whether an inconsistency, inaccuracy, or
14 falsehood goes to the heart of the applicant's claim, or any
15 other relevant factor.” 8 U.S.C. § 1158(b)(B)(iii). “We
16 defer . . . to an IJ’s credibility determination unless, from
17 the totality of the circumstances, it is plain that no
18 reasonable fact-finder could make such an adverse credibility
19 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
20 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
21 evidence supports the adverse credibility determination.
3 1 The IJ reasonably relied on Jiang’s demeanor. See 8
2 U.S.C. § 1158(b)(1)(B)(iii). The IJ found that Jiang’s
3 testimony appeared to be “the product of rote memorization”
4 because he responded to the IJ’s questions by “reciting the
5 events in an almost identical way” to his written application.
6 We defer to this determination. See Majidi v. Gonzales, 430
7 F.3d 77, 81 n.1 (2d Cir. 2005) (explaining that “a fact-
8 finder who assesses testimony together with witness demeanor
9 is in the best position to discern . . . whether a witness
10 who hesitated in a response was nevertheless attempting
11 truthfully to recount what he recalled of key events or
12 struggling to remember the lines of a carefully crafted
13 script” (internal quotation marks and brackets omitted)); Jin
14 Chen v. U.S. Dep't of Justice, 426 F.3d 104, 113 (2d Cir.
15 2005) (giving “particular deference to credibility
16 determinations that are based on the adjudicator’s
17 observation of the applicant’s demeanor”). Moreover,
18 inconsistencies provide further support for the demeanor
19 finding and the adverse credibility determination as a whole.
20 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
21 Cir. 2006) (“We can be . . . more confident in our review of
4 1 observations about an applicant’s demeanor where . . . they
2 are supported by specific examples of inconsistent
3 testimony.”).
4 The record supports the IJ’s finding of inconsistencies
5 between Jiang’s testimony and documentary evidence regarding
6 his church attendance in the United States. Jiang testified
7 that he attended church “once every two weeks.” But the
8 letter from his church reflected that he attended church
9 roughly once every three weeks. The IJ was not required to
10 accept Jiang’s explanation that he sometimes forgot to scan
11 his card or arrived late because there was no evidence to
12 corroborate this system or that Jiang actually attended
13 services every two weeks. See Majidi, 430 F.3d at 80–81
14 (holding “petitioner must do more than offer a plausible
15 explanation for his inconsistent statements . . . he must
16 demonstrate that a reasonable fact-finder would be compelled
17 to credit his testimony.” (internal quotation marks
18 omitted)). As the IJ noted, Jiang’s evidence also implied
19 that his attendance fluctuated based on how it would affect
20 his asylum claim: he attended church almost weekly in the
21 five months leading to the filing of his application and his
5 1 asylum interview; but then his attendance decreased while he
2 awaited his hearing before the IJ. Cf. Y.C. v. Holder, 741
3 F.3d 324, 338 (2d Cir. 2013) (noting issues of credibility
4 and ease of manufacturing asylum claims based on activities
5 in United States).
6 The IJ also reasonably relied on the discrepancy between
7 Jiang’s testimony and the household registration booklet he
8 offered as evidence because the booklet listed his status as
9 single, but he alleged that he and his wife married three
10 years before she obtained the booklet and mailed it to him.
11 Contrary to Jiang’s position, the IJ could rely on this
12 tangential inconsistency in considering the “totality of the
13 circumstances.” Xiu Xia Lin, 534 F.3d at 167 (quoting 8
14 U.S.C. § 1158(b)(1)(B)(iii)).
15 Moreover, the IJ reasonably concluded that Jiang failed
16 to rehabilitate his testimony with reliable corroborating
17 evidence because he had no letter from the aunt who introduced
18 him to Christianity in China. See Biao Yang v. Gonzales, 496
19 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
20 corroborate his or her testimony may bear on credibility,
21 because the absence of corroboration in general makes an
6 1 applicant unable to rehabilitate testimony that has already
2 been called into question.”). Moreover, the IJ gave
3 diminished weight to Jiang’s witness to his church attendance
4 in the United States because he had no evidence that the
5 witness attended his church. See Y.C., 741 F.3d at 332, 334
6 (“We generally defer to the agency’s evaluation of
7 the weight to be afforded an applicant’s documentary
8 evidence.”).
9 In sum, given the demeanor finding, inconsistencies,
10 and lack of reliable corroboration, substantial evidence
11 supports the agency’s adverse credibility determination. See
12 Hong Fei Gao, 891 F.3d at 76. The adverse credibility
13 determination is dispositive of asylum, withholding of
14 removal, and CAT relief because all three claims are based on
15 the same factual predicate. See Paul v. Gonzales, 444 F.3d
16 148, 156–57 (2d Cir. 2006). We do not reach the agency’s
17 alternative finding that Jiang failed to show a pattern or
18 practice of persecution of Christians in his home province.
19 As the Government points out, Jiang has waived consideration
20 of this finding by failing to sufficiently challenge it in
21 his brief. Although he references the pattern or practice
7 1 finding, he provides no argument about conditions for
2 Christians in his home province as required to state such a
3 claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,
4 545 n.7 (2d Cir. 2005).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court