17-545 Wang v. Sessions BIA Loprest, IJ A205 433 910 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 5th day of July, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PIERRE N. LEVAL, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 XU WANG, 14 Petitioner, 15 16 v. 17-545 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New 24 York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Holly M. Smith, 28 Senior Litigation Counsel; Jesse 29 Lloyd Busen, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 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 Xu Wang, a native and citizen of the People’s
10 Republic of China, seeks review of a January 26, 2017 decision
11 of the BIA affirming a December 15, 2015 decision of an
12 Immigration Judge (“IJ”) denying Wang’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Xu Wang, No. A 205
15 433 910 (B.I.A. Jan. 26, 2017), aff’g No. A 205 433 910
16 (Immig. Ct. N.Y. City Dec. 15, 2015). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 We have reviewed the decisions of both the IJ and the
20 BIA “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
22 applicable standards of review are well established. See
23 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 2 1 162, 165-66 (2d Cir. 2008). The agency may, “[c]onsidering
2 the totality of the circumstances, . . . base a credibility
3 determination on the demeanor, candor, or responsiveness of
4 the applicant[,] . . . the consistency between the applicant’s
5 or witness’s written and oral statements[,] . . . the internal
6 consistency of each such statement, the consistency of such
7 statements with other evidence of record . . . and any
8 inaccuracies or falsehoods in such statements,” or “any other
9 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
10 Xiu Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
11 credibility determination unless . . . it is plain that no
12 reasonable fact-finder could make such an adverse credibility
13 ruling.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence
14 supports the agency’s determination that Wang was not
15 credible.
16 The agency reasonably relied on inconsistencies within
17 Wang’s testimony and discrepancies between his testimony and
18 documentary evidence. 8 U.S.C. § 1158(b)(1)(B)(iii). Wang
19 testified that, during his detention, he sustained injuries
20 to his left hand, left ring finger, and left bicep; he denied
21 any injuries to his left elbow. On further questioning, 3 1 however, he changed his answer to match the medical report,
2 which reflected injuries to his left elbow and left middle
3 finger. His responses also conflicted with his asylum
4 application, which suggested that he had sustained injuries
5 to more than one finger. When asked to show which finger was
6 injured, he hesitated before raising his right hand, not his
7 left, and isolating his right ring finger. These
8 inconsistencies alone provide substantial support for the
9 adverse credibility determination and completely undermine
10 Wang’s credibility about his alleged persecution. See Xian
11 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.
12 2006) (holding that material inconsistency relating to
13 central aspect of asylum claim provided substantial evidence
14 for adverse credibility determination). The IJ was not
15 required to accept Wang’s explanation that his left arm was
16 hurt more than his right arm, because it did not explain why
17 he identified his right hand as the one injured or resolve
18 his differing descriptions of his injuries. See Majidi v.
19 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
20 do more than offer a plausible explanation for his
21 inconsistent statements to secure relief; he must demonstrate 4 1 that a reasonable fact-finder would be compelled to credit
2 his testimony.” (quotation marks omitted) (emphasis in
3 original)).
4 Moreover, the agency’s demeanor finding—to which we
5 defer—bolsters the adverse credibility determination. 8
6 U.S.C. § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of
7 Justice, 453 F.3d 99, 109 (2d Cir. 2006). The record supports
8 the IJ’s conclusion that Wang’s demeanor shifted on cross-
9 examination, in that he gave unresponsive replies to
10 questions about how he knew to report to the police after his
11 release from his detention and about how many times the police
12 visited his home in China after his release. See Xusheng Shi
13 v. BIA, 374 F.3d 64, 66 (2d Cir. 2004) (upholding IJ’s finding
14 that generalized or non-responsive answers reflected
15 memorized script); Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d
16 Cir. 2007) (finding applicant was unresponsive in manner
17 suggesting evasiveness, rather than nervousness or difficulty
18 comprehending proceedings).
19 Finally, the agency reasonably found that Wang failed to
20 rehabilitate his testimony with reliable corroborating
21 evidence. “An applicant’s failure to corroborate his or her 5 1 testimony may bear on credibility, because the absence of
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17-545 Wang v. Sessions BIA Loprest, IJ A205 433 910 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 5th day of July, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PIERRE N. LEVAL, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 XU WANG, 14 Petitioner, 15 16 v. 17-545 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New 24 York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Holly M. Smith, 28 Senior Litigation Counsel; Jesse 29 Lloyd Busen, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 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 Xu Wang, a native and citizen of the People’s
10 Republic of China, seeks review of a January 26, 2017 decision
11 of the BIA affirming a December 15, 2015 decision of an
12 Immigration Judge (“IJ”) denying Wang’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Xu Wang, No. A 205
15 433 910 (B.I.A. Jan. 26, 2017), aff’g No. A 205 433 910
16 (Immig. Ct. N.Y. City Dec. 15, 2015). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 We have reviewed the decisions of both the IJ and the
20 BIA “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
22 applicable standards of review are well established. See
23 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 2 1 162, 165-66 (2d Cir. 2008). The agency may, “[c]onsidering
2 the totality of the circumstances, . . . base a credibility
3 determination on the demeanor, candor, or responsiveness of
4 the applicant[,] . . . the consistency between the applicant’s
5 or witness’s written and oral statements[,] . . . the internal
6 consistency of each such statement, the consistency of such
7 statements with other evidence of record . . . and any
8 inaccuracies or falsehoods in such statements,” or “any other
9 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
10 Xiu Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
11 credibility determination unless . . . it is plain that no
12 reasonable fact-finder could make such an adverse credibility
13 ruling.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence
14 supports the agency’s determination that Wang was not
15 credible.
16 The agency reasonably relied on inconsistencies within
17 Wang’s testimony and discrepancies between his testimony and
18 documentary evidence. 8 U.S.C. § 1158(b)(1)(B)(iii). Wang
19 testified that, during his detention, he sustained injuries
20 to his left hand, left ring finger, and left bicep; he denied
21 any injuries to his left elbow. On further questioning, 3 1 however, he changed his answer to match the medical report,
2 which reflected injuries to his left elbow and left middle
3 finger. His responses also conflicted with his asylum
4 application, which suggested that he had sustained injuries
5 to more than one finger. When asked to show which finger was
6 injured, he hesitated before raising his right hand, not his
7 left, and isolating his right ring finger. These
8 inconsistencies alone provide substantial support for the
9 adverse credibility determination and completely undermine
10 Wang’s credibility about his alleged persecution. See Xian
11 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.
12 2006) (holding that material inconsistency relating to
13 central aspect of asylum claim provided substantial evidence
14 for adverse credibility determination). The IJ was not
15 required to accept Wang’s explanation that his left arm was
16 hurt more than his right arm, because it did not explain why
17 he identified his right hand as the one injured or resolve
18 his differing descriptions of his injuries. See Majidi v.
19 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
20 do more than offer a plausible explanation for his
21 inconsistent statements to secure relief; he must demonstrate 4 1 that a reasonable fact-finder would be compelled to credit
2 his testimony.” (quotation marks omitted) (emphasis in
3 original)).
4 Moreover, the agency’s demeanor finding—to which we
5 defer—bolsters the adverse credibility determination. 8
6 U.S.C. § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of
7 Justice, 453 F.3d 99, 109 (2d Cir. 2006). The record supports
8 the IJ’s conclusion that Wang’s demeanor shifted on cross-
9 examination, in that he gave unresponsive replies to
10 questions about how he knew to report to the police after his
11 release from his detention and about how many times the police
12 visited his home in China after his release. See Xusheng Shi
13 v. BIA, 374 F.3d 64, 66 (2d Cir. 2004) (upholding IJ’s finding
14 that generalized or non-responsive answers reflected
15 memorized script); Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d
16 Cir. 2007) (finding applicant was unresponsive in manner
17 suggesting evasiveness, rather than nervousness or difficulty
18 comprehending proceedings).
19 Finally, the agency reasonably found that Wang failed to
20 rehabilitate his testimony with reliable corroborating
21 evidence. “An applicant’s failure to corroborate his or her 5 1 testimony may bear on credibility, because the absence of
2 corroboration in general makes an applicant unable to
3 rehabilitate testimony that has already been called into
4 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
5 2007). As the IJ found, Wang failed to corroborate his
6 practice of Christianity in the United States by submitting
7 a letter from the U.S. church where he was baptized. The IJ
8 was not required to accept Wang’s explanation that he lost
9 the letter because it does not resolve why he did not ask for
10 another copy or a new letter. See Majidi, 430 F.3d at 80.
11 Moreover, although Wang submitted letters from his mother and
12 a fellow churchgoer to corroborate his practice of
13 Christianity and past persecution in China, the letters were
14 unsworn statements prepared for the purpose of litigation by
15 parties, at least one of whom—his mother—was an interested
16 witness, not subject to cross examination. See Y.C. v.
17 Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to
18 agency’s decision to give limited weight to letter from
19 applicant’s spouse in China). And the IJ was not compelled
20 to credit the letters because they could not resolve the
21 credibility issues in Wang’s own testimony, particularly 6 1 regarding his injuries. Biao Yang, 496 F.3d at 273.
2 Given the inconsistent testimony, demeanor issues, and
3 the absence of corroborating evidence independent of Wang’s
4 own credibility, the adverse credibility determination is
5 supported by substantial evidence. See 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-66. The
7 adverse credibility determination is dispositive of asylum,
8 withholding of removal, and CAT relief because all three
9 claims rely on Wang’s credibility. See Paul v. Gonzales, 444
10 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court