Yang v. Whitaker

17-1706 Yang v. Whitaker BIA Nelson, IJ A200 177 805 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 28th day of December, two thousand eighteen. — 5 — 6 PRESENT: 7 BARRINGTON D. PARKER, 8 RENNA RAGGI, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 FENG YANG, 13 Petitioner, — 14 — 15 v. 17-1706 16 NAC 17 MATTHEW G. WHITAKER, 18 UNITED STATES ATTORNEY GENERAL, 19 Respondent. 20 _____________________________________ — 21 — 22 FOR PETITIONER: Mike P. Gao, Flushing, NY. — 23 — 24 FOR RESPONDENT: Chad A. Readler, Principal Deputy 25 Assistant Attorney General; Paul 26 Fiorino, Senior Litigation 27 Counsel; Judith R. O’Sullivan, 28 Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DISMISSED in part and DENIED in part. 5 Petitioner Feng Yang, a native and citizen of the 6 People’s Republic of China, seeks review of a May 19, 2017, 7 decision of the BIA affirming a September 20, 2016, decision 8 of an Immigration Judge (“IJ”) denying Yang’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Feng Yang, No. 11 A200 177 805 (B.I.A. May 19, 2017), aff’g No. A200 177 805 12 (Immig. Ct. N.Y. City Sept. 20, 2016). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 We have reviewed the IJ’s decision as supplemented by 16 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 17 Cir. 2005). The applicable standards of review are well 18 established. See 8 U.S.C. § 1252 (b)(4)(B); Xiu Xia Lin v. 19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)(per curiam); 20 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21 I. Asylum 22 An asylum applicant must “demonstrate[] by clear and 23 convincing evidence that the application has been filed — 2 — 1 within 1 year after the date of the alien’s arrival in the 2 United States,” or “either the existence of changed 3 circumstances which materially affect the applicant’s 4 eligibility for asylum or extraordinary circumstances 5 relating to the delay in filing an application.” 8 U.S.C. § 6 1158(a)(2)(B), (D). Our jurisdiction to review the agency’s 7 finding that an application was untimely is limited to 8 “constitutional claims or questions of law.” Id. 9 § 1252(a)(2)(D); see id. § 1158(a)(3); Joaquin-Porras v. 10 Gonzales, 435 F.3d 172, 177-78 (2d Cir. 2006). 11 We dismiss the petition as to asylum for lack of 12 jurisdiction. Yang claimed that he did not apply for asylum 13 on arriving in the United States because he did not speak 14 English and had to repay his snakehead. Yang does not 15 challenge the agency’s factual determination that the 16 language barrier and his outstanding debt were not 17 extraordinary circumstances excusing a ten-year delay. 18 Although he now contends that political activities in the 19 United States constitute a changed circumstance, this 20 argument is unexhausted, see Lin Zhong v. U.S. Dep’t of 21 Justice, 480 F.3d 104, 122 (2d Cir. 2007), and the explanation 22 implicates the adverse credibility determination, which is an — 3 — 1 unreviewable factual determination in this context and, as 2 discussed below, is supported by substantial evidence. 3 II. Adverse Credibility Determination 4 “Considering the totality of the circumstances, . . . a 5 trier of fact may base a credibility determination on the 6 demeanor, candor, or responsiveness of the applicant . . . , 7 the consistency between the applicant’s or witness’s written 8 and oral statements . . . , the internal consistency of each 9 such statement, the consistency of such statements with other 10 evidence of record . . . , and any inaccuracies or falsehoods 11 in such statements, . . . or any other relevant factor.” 8 12 U.S.C. § 1158 (b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d 13 at 163-64 . “We defer . . . to an IJ’s credibility 14 determination unless . . . it is plain that no reasonable 15 fact-finder could make such an adverse credibility ruling.” 16 Xiu Xia Lin, 534 F.3d at 167. Substantial evidence supports 17 the agency’s determination that Yang was not credible. 18 Yang testified that he left China in 2000 because the 19 Chinese authorities were looking for him because they had 20 learned that he planned to petition the government after the 21 demolition of his family’s home. But Yang both omitted this 22 event from his written statement and inconsistently stated 23 that he left China for a better future because of his family’s — 4 — 1 difficult financial circumstances. The IJ reasonably relied 2 on the inconsistency, which called into question why Yang 3 left China and whether there was any reason that he would be 4 on the Chinese government’s radar. See id. at 166-67 5 (explaining that “an IJ may rely on any inconsistency or 6 omission”); Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir. 7 2009) (“Omissions that go to a heart of an applicant’s claim 8 can form the basis for an adverse credibility determination.” 9 (brackets and citation omitted)). 10 The agency was not required to accept Yang’s explanations 11 for the omission because they do not explain why his written 12 statement says he came to the United States for a better 13 future given his family’s finances. See Majidi v. Gonzales, — 14 — 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more 15 than offer a plausible explanation for his inconsistent 16 statements to secure relief; he must demonstrate that a 17 reasonable fact-finder would be compelled to credit his 18 testimony.” (internal quotation marks and citations 19 omitted)). 20 The adverse credibility determination is further 21 supported by the IJ’s finding that Yang’s testimony lacked 22 detail, in that he was unable to elaborate on the articles he 23 wrote, and the IJ’s observations of his demeanor, to which we — 5 — 1 defer. See 8 U.S.C. § 1158 (b)(1)(B)(iii) (providing that, 2 in considering credibility, an IJ may rely on “demeanor, 3 candor, or responsiveness”); Li Hua Lin v. U.S. Dep’t of 4 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (giving “particular 5 deference” to demeanor findings (internal quotation marks 6 omitted)). Although Yang argues that his nervousness was 7 normal and the IJ’s demeanor finding was speculative, the IJ 8 reasonably relied on the fact that, despite repeated 9 questioning, Yang could not describe the contents of his own 10 articles. See Li Hua Lin, 453 F.3d at 109 . 11 The agency also reasonably found that Yang failed to 12 rehabilitate his testimony with reliable corroborating 13 evidence. “An applicant’s failure to corroborate his or her 14 testimony may bear on credibility, because the absence of 15 corroboration in general makes an applicant unable to 16 rehabilitate testimony that has already been called into 17 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 18 2007)(per curiam). Where an asylum applicant bases a claim 19 solely on activities in the United States, the applicant must 20 show that the Chinese government is aware or likely to become 21 aware of those activities. Hongsheng Leng v. Mukasey, 528 22 F.3d 135, 138 (2d Cir. 2008)(per curiam). As the IJ found, 23 Yang provided no evidence to corroborate his testimony that — 6 — 1 Chinese authorities told his parents that they were aware of 2 his prodemocracy activities in the United States. 3 Accordingly, substantial evidence supports the agency’s 4 adverse credibility determination. See 8 U.S.C. 5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-66 . The 6 adverse credibility determination is dispositive because 7 withholding of removal and CAT relief relied on Yang’s 8 credibility and are based on the same factual predicate. See 9 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). Hence, 10 we do not reach the agency’s alternative burden-of-proof 11 finding. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As 12 a general rule courts and agencies are not required to make 13 findings on issues the decision of which is unnecessary to 14 the results they reach.”). 15 For the foregoing reasons, the petition for review is 16 DISMISSED in part and DENIED in part. 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court — 7 —