19-6 Wei v. Barr BIA
Douchy, IJ
A205 288 270
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 17th day of August, two thousand twenty. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 QIANG WEI, 14 Petitioner, 15 16 v. 19-6 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: John S. Yong, Esq., New York, NY. 24 25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 26 Attorney General; Anthony P. 27 Nicastro, Assistant Director; 28 Ilana J. Snyder, Trial Attorney;
1 Alma C. Atassi, Legal Intern, 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 Qiang Wei, a native and citizen of the 10 People’s Republic of China, seeks review of a December 14, 11 2018, decision of the BIA affirming a November 14, 2017, 12 decision of an Immigration Judge (“IJ”) denying Wei’s 13 application for asylum, withholding of removal, and relief 14 under the Convention Against Torture (“CAT”). In re Qiang 15 Wei, No. A 205 288 270 (B.I.A. Dec. 14, 2018), aff’g No. A 16 205 288 270 (Immig. Ct. N.Y.C. Nov. 14, 2017). We assume the 17 parties’ familiarity with the underlying facts and procedural 18 history. 19 We have reviewed both the IJ’s and the BIA’s opinions 20 “for the sake of completeness.” Wangchuck v. Dep’t of 21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 22 standards of review are well established. See 8 U.S.C. 23 § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
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1 Cir. 2018); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). 2 The agency may, “[c]onsidering the totality of the 3 circumstances . . . base a credibility determination on the 4 demeanor, candor, or responsiveness of the applicant,” the 5 plausibility of his account, and inconsistencies in his 6 statements or between his statements and other evidence, 7 without regard to whether they go “to the heart of the 8 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 9 defer . . . to an IJ’s credibility determination unless . . . 10 it is plain that no reasonable fact-finder could make such an 11 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 12 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d 13 at 76. The agency’s adverse credibility determination is 14 supported by substantial evidence. 15 Wei’s statements contained multiple discrepancies, some 16 of which concerned matters central to his claim for relief. 17 First, Wei testified that he was beaten in detention, both by 18 the police and by fellow inmates at the police’s instigation. 19 But, in his original written statement, Wei claimed only that 20 the police encouraged other inmates to beat him. The agency 21 did not err in considering the original statement. See
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1 Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 111 (2d 2 Cir. 2006) (holding that discrepancy between an applicant’s 3 original asylum application and the amended application and 4 testimony provided substantial evidence in support of adverse 5 credibility determination). And the agency reasonably 6 concluded that this omission undermined credibility because 7 the beating by the police was central to his claim. See Hong 8 Fei Gao, 891 F.3d at 78–79 (“[I]n assessing the probative 9 value of the omission of certain facts, an IJ should consider 10 whether those facts are ones that a credible petitioner would 11 reasonably have been expected to disclose under the relevant 12 circumstances.”); see also Xian Tuan Ye v. Dep’t of Homeland 13 Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that “a 14 material inconsistency in an aspect of [an applicant’s] story 15 that served as an example of the very persecution from which 16 he sought asylum . . . afforded substantial evidence to 17 support the adverse credibility finding” (internal quotation 18 marks and citation omitted)). The agency was not required 19 to accept Wei’s explanation that he wrote the original 20 statement in immigration detention, or that his previous 21 attorney “only asked [him] to briefly write down” his
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1 experiences, particularly since that statement provided 2 details about the police-instigated beatings by inmates 3 during the same period. See Majidi v. Gonzales, 430 F.3d 77, 4 80 (2d Cir. 2005) (“A petitioner must do more than offer a 5 plausible explanation for his inconsistent statements to 6 secure relief; he must demonstrate that a reasonable fact- 7 finder would be compelled to credit his testimony.” (internal 8 quotation marks omitted)). 9 Second, Wei testified that his fellow inmates had been 10 arrested “because they steal,” and that he knew this because 11 one of them had told him. By contrast, in his amended 12 statement, he specified that he “did not know the reason for 13 their detention.” Wei did not compellingly explain this 14 contradiction. 15 Third, Wei’s testimony regarding post-detention 16 monitoring was contradictory and difficult to follow. In his 17 amended statement, Wei alleged that, in the week following 18 his release, “the official of the local residential committee 19 visited [his] home daily to see if [he] still attended any 20 house church activities” and “[t]heir monitoring gradually 21 ended after the first week.” But during his testimony, he
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1 claimed that “[e]very week, they came once. Not every day.” 2 He also testified that they sometimes came “every other week,” 3 that he was not sure when they came because sometimes only 4 his mother was home, and that the visits continued for at 5 least two weeks. When asked to explain his testimony, he 6 asserted that the fact that they stopped “monitoring” him 7 “[d]id not mean they do not come,” and that, by “monitoring,” 8 he meant that the residential committee director lived on a 9 lower floor of his building and noted when he entered and 10 exited the building, but the police came to visit once a week 11 or every other week. Wei now vaguely argues that the IJ 12 misunderstood his testimony due to a probable translation 13 error having to do with the word “monitoring.” But he did 14 not exhaust this argument before the agency. See Lin Zhong 15 v. U.S. Dep’t of Justice, 480 F.3d 104, 122–24 (2d Cir. 2007) 16 (providing that we generally consider only issues exhausted 17 before the BIA). In any event, when he was given an 18 opportunity to explain what he meant by “monitoring” during 19 cross-examination, his testimony only became more confusing 20 and contradictory. 21 Fourth, Wei omitted multiple employers in multiple states
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1 from his asylum application. The agency did not err in 2 considering this inconsistency because it may rely on 3 discrepancies that do not go “to the heart of the applicant’s 4 claim” when evaluating credibility. 8 U.S.C. 5 § 1158(b)(1)(B)(iii). 6 In addition to the above, we defer to the IJ’s demeanor 7 finding, which is supported by the record and which Wei does 8 not challenge. See Jin Chen v. U.S. Dep’t of Justice, 426 9 F.3d 104, 113 (2d Cir. 2005) (explaining that “IJ’s ability 10 to observe the witness’s demeanor places her in the best 11 position to evaluate whether apparent problems in the 12 witness’s testimony suggest a lack of credibility or, rather, 13 can be attributed to an innocent cause such as difficulty 14 understanding the question”). 15 It is not clear whether the IJ also relied on testimony 16 surrounding Wei’s visa applications that the she found 17 implausible, or merely discussed this testimony to note her 18 concern for the record. In either event, the 19 inconsistencies, omissions, and demeanor finding provide 20 ample support for the agency’s adverse credibility 21 determination. See Xiu Xia Lin, 534 F.3d at 167. Because
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1 Wei’s claims for asylum, withholding of removal, and CAT 2 relief all relied on the same discredited testimony, the 3 credibility determination is dispositive of all forms of 4 relief. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 5 2006). 6 For the foregoing reasons, the petition for review is 7 DENIED. All pending motions and applications are DENIED and 8 stays VACATED.
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court