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
2 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
3 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
4 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
5 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
Free access — add to your briefcase to read the full text and ask questions with AI
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
2 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
3 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
4 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
5 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
6 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
7 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 12