20-2835 Wang v. Garland BIA Brennan, IJ A202 035 766 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 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 9th day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 JON O. NEWMAN, 9 MICHAEL H. PARK, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 HAIYING WANG, 15 Petitioner, 16 17 v. 20-2835 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 25 FOR PETITIONER: Troy Nader Moslemi, Esq., 26 Flushing, NY. 27 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Brianne Whelan 3 Cohen, Senior Litigation Counsel; 4 Todd J. Cochran, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, 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 Haiying Wang, a native and citizen of the
13 People’s Republic of China, seeks review of a July 31, 2020
14 decision of the BIA affirming a July 2, 2018 decision of an
15 Immigration Judge (“IJ”) denying her application for asylum,
16 withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Haiying Wang, No. A 202 035
18 766 (B.I.A. July 31, 2020), aff’g No. A 202 035 766 (Immigr.
19 Ct. N.Y.C. July 2, 2018). We assume the parties’ familiarity
20 with the underlying facts and procedural history.
21 We have considered both the IJ’s and the BIA’s decisions
22 “for the sake of completeness.” Wangchuck v. Dep’t of
23 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). “[T]he
24 administrative findings of fact are conclusive unless any
25 reasonable adjudicator would be compelled to conclude to the 2 1 contrary.” 8 U.S.C. § 1252(b)(4)(B). “Accordingly, we
2 review the agency’s decision for substantial evidence and
3 must defer to the factfinder’s findings based on such relevant
4 evidence as a reasonable mind might accept as adequate to
5 support a conclusion. . . . By contrast, we review legal
6 conclusions de novo.” Singh v. Garland, 11 F.4th 106, 113
7 (2d Cir. 2021) (internal quotation marks omitted).
8 Wang had the burden to demonstrate her eligibility for
9 asylum, i.e., that she had a well-founded fear of persecution
10 in China because she began practicing Christianity in the
11 United States and the Chinese government discovered that she
12 had sent religious materials to China. See 8 U.S.C.
13 § 1158(b)(1)(B)(i). “The testimony of the applicant may be
14 sufficient to sustain the applicant’s burden without
15 corroboration, but only if the applicant satisfies the trier
16 of fact that the applicant’s testimony is credible, is
17 persuasive, and refers to specific facts sufficient to
18 demonstrate that the applicant is a refugee.” Id.
19 § 1158(b)(1)(B)(ii). “Considering the totality of the
20 circumstances, and all relevant factors, a trier of fact may
21 base a credibility determination on the demeanor, candor, or
3 1 responsiveness of the applicant . . . the inherent
2 plausibility” of the applicant’s account, and inconsistencies
3 within and between an applicant’s statements and evidence
4 “without regard to whether” they go “to the heart of the
5 applicant’s claim.” Id. § 1158(b)(1)(B)(iii). “We defer
6 . . . to an IJ’s credibility determination unless, from the
7 totality of the circumstances, it is plain that no reasonable
8 fact-finder could make such an adverse credibility ruling.”
9 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
10 accord Hong Fei Gao, 891 F.3d at 76.
11 The agency reasonably concluded that Wang failed to meet
12 her burden given her lack of credible testimony or reliable
13 corroboration. Specifically, the agency reasonably concluded
14 that Wang’s evidence of church attendance was vague and
15 inconsistent. See 8 U.S.C. § 1158(b)(1)(B)(iii); Jin Shui
16 Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003) (“Where an
17 applicant gives very spare testimony . . . the IJ or the INS
18 may fairly wonder whether the testimony is fabricated.”),
19 overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of
20 Just., 494 F.3d 296 (2d Cir. 2007). Wang initially testified
21 that she began attending church in 2013 and attended two to
4 1 three times a month, but upon further questioning, stated
2 that she attended weekly, then said she attended once or twice
3 a month. Wang’s husband testified that she went to church
4 about twice a month in 2015, and weekly in 2016, but Wang
5 testified that her attendance was “similar” in 2015 and 2016.
6 R. at 98. The agency did not err in relying on this vague
7 testimony, particularly as efforts to elicit details revealed
8 inconsistencies. See Shunfu Li v. Mukasey, 529 F.3d 141, 147
9 (2d Cir. 2008) (“[R]equiring IJs to solicit additional
10 details from witnesses before rejecting their testimony as
11 incredible on vagueness grounds serves a useful prophylactic
12 purpose . . . ”).
13 Wang also did not adequately corroborate her church
14 attendance. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
15 Cir. 2007) (“An applicant’s failure to corroborate . . . her
16 testimony may bear on credibility, because the absence of
17 corroboration in general makes an applicant unable to
18 rehabilitate testimony that has already been called into
19 question.”); see also Wei Sun v. Sessions, 883 F.3d 23, 28–
20 29 (2d Cir. 2018) (“[W]here . . . ‘the trier of fact
21 determines that the applicant should provide evidence that
5 1 corroborates otherwise credible testimony, such evidence must
2 be provided unless the applicant does not have the evidence
3 and cannot reasonably obtain the evidence.’” (quoting 8
4 U.S.C.
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20-2835 Wang v. Garland BIA Brennan, IJ A202 035 766 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 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 9th day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 JON O. NEWMAN, 9 MICHAEL H. PARK, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 HAIYING WANG, 15 Petitioner, 16 17 v. 20-2835 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 25 FOR PETITIONER: Troy Nader Moslemi, Esq., 26 Flushing, NY. 27 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Brianne Whelan 3 Cohen, Senior Litigation Counsel; 4 Todd J. Cochran, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, 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 Haiying Wang, a native and citizen of the
13 People’s Republic of China, seeks review of a July 31, 2020
14 decision of the BIA affirming a July 2, 2018 decision of an
15 Immigration Judge (“IJ”) denying her application for asylum,
16 withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Haiying Wang, No. A 202 035
18 766 (B.I.A. July 31, 2020), aff’g No. A 202 035 766 (Immigr.
19 Ct. N.Y.C. July 2, 2018). We assume the parties’ familiarity
20 with the underlying facts and procedural history.
21 We have considered both the IJ’s and the BIA’s decisions
22 “for the sake of completeness.” Wangchuck v. Dep’t of
23 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). “[T]he
24 administrative findings of fact are conclusive unless any
25 reasonable adjudicator would be compelled to conclude to the 2 1 contrary.” 8 U.S.C. § 1252(b)(4)(B). “Accordingly, we
2 review the agency’s decision for substantial evidence and
3 must defer to the factfinder’s findings based on such relevant
4 evidence as a reasonable mind might accept as adequate to
5 support a conclusion. . . . By contrast, we review legal
6 conclusions de novo.” Singh v. Garland, 11 F.4th 106, 113
7 (2d Cir. 2021) (internal quotation marks omitted).
8 Wang had the burden to demonstrate her eligibility for
9 asylum, i.e., that she had a well-founded fear of persecution
10 in China because she began practicing Christianity in the
11 United States and the Chinese government discovered that she
12 had sent religious materials to China. See 8 U.S.C.
13 § 1158(b)(1)(B)(i). “The testimony of the applicant may be
14 sufficient to sustain the applicant’s burden without
15 corroboration, but only if the applicant satisfies the trier
16 of fact that the applicant’s testimony is credible, is
17 persuasive, and refers to specific facts sufficient to
18 demonstrate that the applicant is a refugee.” Id.
19 § 1158(b)(1)(B)(ii). “Considering the totality of the
20 circumstances, and all relevant factors, a trier of fact may
21 base a credibility determination on the demeanor, candor, or
3 1 responsiveness of the applicant . . . the inherent
2 plausibility” of the applicant’s account, and inconsistencies
3 within and between an applicant’s statements and evidence
4 “without regard to whether” they go “to the heart of the
5 applicant’s claim.” Id. § 1158(b)(1)(B)(iii). “We defer
6 . . . to an IJ’s credibility determination unless, from the
7 totality of the circumstances, it is plain that no reasonable
8 fact-finder could make such an adverse credibility ruling.”
9 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
10 accord Hong Fei Gao, 891 F.3d at 76.
11 The agency reasonably concluded that Wang failed to meet
12 her burden given her lack of credible testimony or reliable
13 corroboration. Specifically, the agency reasonably concluded
14 that Wang’s evidence of church attendance was vague and
15 inconsistent. See 8 U.S.C. § 1158(b)(1)(B)(iii); Jin Shui
16 Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003) (“Where an
17 applicant gives very spare testimony . . . the IJ or the INS
18 may fairly wonder whether the testimony is fabricated.”),
19 overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of
20 Just., 494 F.3d 296 (2d Cir. 2007). Wang initially testified
21 that she began attending church in 2013 and attended two to
4 1 three times a month, but upon further questioning, stated
2 that she attended weekly, then said she attended once or twice
3 a month. Wang’s husband testified that she went to church
4 about twice a month in 2015, and weekly in 2016, but Wang
5 testified that her attendance was “similar” in 2015 and 2016.
6 R. at 98. The agency did not err in relying on this vague
7 testimony, particularly as efforts to elicit details revealed
8 inconsistencies. See Shunfu Li v. Mukasey, 529 F.3d 141, 147
9 (2d Cir. 2008) (“[R]equiring IJs to solicit additional
10 details from witnesses before rejecting their testimony as
11 incredible on vagueness grounds serves a useful prophylactic
12 purpose . . . ”).
13 Wang also did not adequately corroborate her church
14 attendance. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
15 Cir. 2007) (“An applicant’s failure to corroborate . . . her
16 testimony may bear on credibility, because the absence of
17 corroboration in general makes an applicant unable to
18 rehabilitate testimony that has already been called into
19 question.”); see also Wei Sun v. Sessions, 883 F.3d 23, 28–
20 29 (2d Cir. 2018) (“[W]here . . . ‘the trier of fact
21 determines that the applicant should provide evidence that
5 1 corroborates otherwise credible testimony, such evidence must
2 be provided unless the applicant does not have the evidence
3 and cannot reasonably obtain the evidence.’” (quoting 8
4 U.S.C. § 1158(b)(1)(B)(ii)). Wang had one letter from a
5 church in New York to corroborate her attendance in 2014, but
6 no evidence to corroborate a consistent practice of
7 Christianity between 2014 and her 2018 hearing. Moreover,
8 she could not remember the name or location of the church she
9 allegedly attended in Tennessee, nor could she explain the
10 absence of an updated letter from her New York church given
11 her testimony that she attended weekly in the months leading
12 up to the hearing.
13 This record supports the agency’s conclusion that Wang
14 failed to meet her burden of proof with credible testimony or
15 corroborating evidence as her failure to establish her
16 practice of Christianity undermined the foundation of her
17 claim, i.e., that she was a devout Christian who sent
18 religious materials to China to try to convert friends and
19 family. See 8 U.S.C. § 1158(b)(1)(B)(ii), (iii); Jin Shui
20 Qiu, 329 F.3d at 152. That determination is dispositive of
21 asylum, withholding of removal, and CAT relief because all
6 1 three claims were based on the same factual predicate. See
2 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
3 Wang’s remaining arguments fail. She contends that the
4 IJ should not have relied on the fact that she sent her son
5 to live in China, but the agency reasonably concluded that
6 fact undermined her alleged fear because she sent her son to
7 stay with her parents after her mother’s alleged arrest and
8 even though the police allegedly visited her parents’ home.
9 Nor was the agency required to give greater weight or further
10 parse her documentary evidence. See Y.C. v. Holder, 741 F.3d
11 325, 334 (2d Cir. 2013) (“We defer to the agency’s
12 determination of the weight afforded to an alien’s
13 documentary evidence.”); Jin Yi Liao v. Holder, 558 F.3d 152,
14 156 n.3 (2d Cir. 2009) (explaining that the “agency is not
15 required to expressly parse or refute . . . each . . . piece
16 of evidence” and that “we will generally presume that the
17 agency has taken into account all of the evidence before it,
18 unless the record compellingly suggests otherwise” (cleaned
19 up)).
7 1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court