Jiang v. Barr

18-1652 Jiang v. Barr BIA Leeds, IJ A205 046 327 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 4th day of February, two thousand twenty. — 5 — 6 PRESENT: 7 GUIDO CALABRESI, 8 JOSÉ A. CABRANES, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ — 12 — 13 MIN JIAN JIANG, 14 Petitioner, — 15 — 16 v. 18-1652 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ — 22 — 23 FOR PETITIONER: Gerald Karikari, Esq., New York, 24 NY. — 25 — 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Lisa M. Arnold, Senior 28 Litigation Counsel; Joseph B. 29 Edlow, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Min Jian Jiang, a native and citizen of China, 9 seeks review of a May 22, 2018 decision of the BIA affirming 10 a May 22, 2017 decision of an Immigration Judge (“IJ”) denying 11 Jiang’s application for asylum, withholding of removal, and 12 relief under the Convention Against Torture (“CAT”). In re 13 Min Jian Jiang, No. A 205 046 327 (B.I.A. May 22, 2018), aff’g 14 No. A 205 046 327 (Immig. Ct. N.Y. City May 22, 2017). We 15 assume the parties’ familiarity with the underlying facts and 16 procedural history. 17 We have reviewed both the IJ’s and the BIA’s decisions 18 “for the sake of completeness.” Wangchuck v. Dep’t of 19 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 20 applicable standards of review are well established. See 8 21 U.S.C. § 1252 (b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 22 67, 76 (2d Cir. 2018) (reviewing adverse credibility 23 determination for substantial evidence). — 2 — 1 “Considering the totality of the circumstances, and all 2 relevant factors, a trier of fact may base a credibility 3 determination on the demeanor, candor, or responsiveness of 4 the applicant . . . , the consistency between the applicant’s 5 . . . written and oral statements . . . , the internal 6 consistency of each such statement, [and] the consistency of 7 such statements with other evidence of record . . . without 8 regard to whether an inconsistency, inaccuracy, or falsehood 9 goes to the heart of the applicant’s claim, or any other 10 relevant factor.” 8 U.S.C. § 1158 (b)(1)(B)(iii). “We defer 11 . . . to an IJ’s credibility determination unless, from the 12 totality of the circumstances, it is plain that no reasonable 13 fact-finder could make such an adverse credibility ruling.” 14 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); 15 accord Hong Fei Gao, 891 F.3d at 76 . The agency’s adverse 16 credibility determination is supported by substantial 17 evidence. 18 Jiang does not substantively challenge the agency’s 19 demeanor finding and has therefore waived review of that 20 determination. See Yueqing Zhang v. Gonzales, 426 F.3d 540 , 21 541 n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner 22 abandons issues and claims not raised in his brief). — 3 — 1 Regardless of waiver, the agency properly considered Jiang’s 2 demeanor to find him not credible because the finding is 3 grounded in the record, and we generally defer to an IJ’s 4 demeanor finding. See Jin Chen v. U.S. Dep’t of Justice, 426 5 F.3d 104 , 113 (2d Cir. 2005) (“We give particular deference 6 to credibility determinations that are based on the 7 adjudicator’s observation of the applicant’s demeanor, in 8 recognition of the fact that the IJ’s ability to observe the 9 witness’s demeanor places h[im] in the best position to 10 evaluate whether apparent problems in the witness’s testimony 11 suggest a lack of credibility or, rather, can be attributed 12 to an innocent cause such as difficulty understanding the 13 question.”). 14 The IJ found Jiang had “long pauses” when testifying. 15 This finding is supported by the record: when asked why he 16 did not name in his written statement a coworker who was also 17 persecuted, Jiang did not immediately answer, and later, when 18 confronted with an inconsistency about when he began 19 practicing Falun Gong in a New York park, there was a long 20 pause before Jiang replied. [CAR 119, 163.] Because the record 21 supports the IJ’s demeanor findings, we defer to the agency’s 22 adverse credibility determination in that respect. See Jin — 4 — 1 Chen, 426 F.3d at 113 . 2 The agency also reasonably relied on inconsistencies 3 between Jiang and his friend about when Jiang began practicing 4 Falun Gong in a New York park and how the friends reconnected 5 in New York. Further, Jiang was internally inconsistent 6 about how many times per week he practiced Falun Gong. He 7 did not have compelling explanations for these 8 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d 9 Cir. 2005) (“A petitioner must do more than offer a plausible 10 explanation for his inconsistent statements to secure relief; 11 he must demonstrate that a reasonable fact-finder would be 12 compelled to credit his testimony.” (internal quotation marks 13 omitted)). 14 Having questioned Jiang’s credibility, the agency 15 reasonably relied on his failure to rehabilitate his 16 testimony with reliable corroborating evidence. See Biao 17 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 18 applicant’s failure to corroborate his or her testimony may 19 bear on credibility, because the absence of corroboration in 20 general makes an applicant unable to rehabilitate testimony 21 that has already been called into question.”). Jiang 22 submitted undated pictures taken by an unknown photographer — 5 — 1 of Jiang allegedly practicing Falun Gong and protesting the 2 Chinese government in the United States, unsworn statements 3 from a friend in China and his mother, and a notarized 4 affidavit from his witness. The agency did not err in 5 declining to afford significant weight to these documents 6 because the photographer, the friend, and Jiang’s mother were 7 not available for cross-examination, and his mother was an 8 interested witness. See Y.C. v. Holder, 741 F.3d 324 , 334 9 (2d Cir. 2013) (deferring to agency’s decision to afford 10 little weight to spouse’s letter because it was unsworn and 11 from an interested witness); see also In re H-L-H- & Z-Y-Z-, — 12 — 25 I. & N. Dec. 209, 215 (BIA 2010) (finding that unsworn 13 letters from alien’s friends and family were insufficient to 14 provide substantial support for alien’s claims because they 15 were from interested witnesses not subject to cross16 examination), overruled on other grounds by Hui Lin Huang v. 17 Holder, 677 F.3d 130 , 133–38 (2d Cir. 2012). And Jiang 18 testified inconsistently with his witness, rendering the 19 witness’s affidavit unreliable. Jiang did not submit any 20 particularized, objective evidence to support his claim. See 21 Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d 22 Cir. 2005) (requiring “particularized evidence” beyond — 6 — 1 general country conditions to support a claim). 2 Accordingly, given the demeanor finding, the record 3 inconsistencies, and the lack of reliable corroboration, the 4 adverse credibility determination is supported by substantial 5 evidence. See Xiu Xia Lin, 534 F.3d at 165–66. The adverse 6 credibility determination was dispositive of asylum, 7 withholding of removal, and CAT relief because all three forms 8 of relief were based on the same discredited factual 9 predicate. See Paul v. Gonzales, 444 F.3d 148 , 156–57 (2d 10 Cir. 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. All pending motions and applications are DENIED and 13 stays VACATED. 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court — 7 —