     14-4695
     Jiang v. Lynch
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A097 542 997
                           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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   27th day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            DEBRA ANN LIVINGSTON,
10            DENNY CHIN,
11                 Circuit Judges.
12   _____________________________________
13
14   YAO JIANG,
15            Petitioner,
16
17                    v.                                             14-4695
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Zhen Liang Li, Law Office of Zhen
25                                       Liang Li, New York, New York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General, Civil
29                                       Division; John S. Hogan, Assistant
30                                       Director, Office of Immigration
31                                       Litigation; Samuel P. Go, Senior
1                               Litigation Counsel, Office of
2                               Immigration Litigation, United
3                               States Department of Justice,
4                               Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

7    Board of Immigration Appeals (“BIA”) decision, it is hereby

8    ORDERED, ADJUDGED, AND DECREED that the petition for review is

9    DENIED.

10       Petitioner Yao Jiang, a native and citizen of China, seeks

11   review of a November 24, 2014 decision of the BIA affirming an

12   October 10, 2012 decision of an Immigration Judge (“IJ”) denying

13   Jiang’s application for asylum, withholding of removal, and

14   relief under the Convention Against Torture (“CAT”).    In re Yao

15   Jiang, No. A097 542 997 (B.I.A. Nov. 24, 2014), aff’g No. A097

16   542 997 (Immig. Ct. N.Y. City Oct. 12, 2012).       We assume the

17   parties’ familiarity with the underlying facts and procedural

18   history in this case.

19       Under the circumstances of this case, where the BIA has

20   adopted and supplemented the IJ’s decision, we should review

21   the IJ’s and BIA’s decisions.       See Yan Chen v. Gonzales, 417

22   F.3d 268, 271 (2d Cir. 2005).        The applicable standards of

23   review are well established.        See 8 U.S.C. § 1252(b)(4)(B);

                                     2
1    see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

2    2008)     (adverse     credibility         determination        reviewed      for

3    substantial evidence).

4        For asylum applications like Jiang’s, governed by the REAL

5    ID Act, the agency may, “[c]onsidering the totality of the

6    circumstances,” base a credibility finding on “demeanor,

7    candor, or responsiveness of the applicant or witness,” and

8    inconsistencies       and    omissions       in    an    asylum     applicant’s

9    statements    and    other    record       evidence      “without    regard    to

10   whether” they go “to the heart of the applicant’s claim.”

11   8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at

12   163-64.    In finding testimony implausible, if “the reasons for

13   [the IJ’s] incredulity are evident,” the implausibility finding

14   is supported by substantial evidence.                   See Wensheng Yan v.

15   Mukasey, 509 F.3d 63, 66-68 (2d Cir. 2007).

16       The agency reasonably determined that Jiang testified

17   inconsistently       about    the    arrest       of    the   two   Falun   Gong

18   practitioners who distributed flyers with her.                  Initially, she

19   testified that she did not know how long these practitioners

20   were detained; she later testified that they continued to be

21   detained    more     than    three   years     after      the   incident.       A
                                            3
1    reasonable factfinder would not be compelled to credit Jiang’s

2    explanation for this discrepancy—that she was unsure of the

3    length of their detention.    See Majidi v. Gonzales, 430 F.3d

4    77, 80-81 (2d Cir. 2005).

5        The IJ was entitled to consider implausibilities in Jiang’s

6    testimony.   The IJ found incredible Jiang’s testimony that she

7    knew to escape when the police arrived because Falun Gong

8    practitioners yelled her name from over 100 meters away.    The

9    IJ questioned whether Jiang could hear over such a distance and

10   why the practitioners came up with a plan to warn one another

11   if the police arrived by calling out one another’s names (rather

12   than yell “police” or some other non-identifying cue), since

13   doing so would alert the police to the names of those trying

14   to escape arrest. When confronted with these implausibilities,

15   Jiang insisted she was able to hear the practitioners yell and

16   stated that it did not occur to the Falun Gong practitioners

17   that the police would know Jiang’s name if they called it out

18   because “[a]t that time [they] didn’t think of so many things.”

19   Cert. Admin. Record 137.    As she did not actually explain the

20   implausibilities, the agency was not compelled to credit

21   Jiang’s testimony. See Majidi, 430 F.3d at 80-81.
                                    4
1        Jiang also challenges the IJ’s demeanor finding.          In

2    considering the considerable shift in Jiang’s testimony about

3    the length of the detention of the two Falun Gong practitioners,

4    the IJ found that Jiang “may not be testifying from actual

5    experience, [and] that she has just simply memorized some

6    information that may have no connection to reality.”       Cert.

7    Admin. Record 66.    This Court generally affords particular

8    deference to an IJ’s assessment of an applicant’s demeanor, Jin

9    Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005),

10   particularly when the IJ’s demeanor finding is bolstered by

11   specific inconsistencies in the record, Li Hua Lin v. U.S. Dep't

12   of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

13       Because the agency’s adverse credibility determination is

14   supported by substantial evidence, and all of Jiang’s claims

15   (asylum, withholding of removal, and CAT relief) rely on the

16   same factual predicate, the adverse credibility determination

17   is dispositive and it is unnecessary to consider the agency’s

18   alternate determination that Jiang did not meet her burden for

19   relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006);

20   see also INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam).

21
                                     5
1        For the foregoing reasons, the petition for review is

2    DENIED.    As we have completed our review, any stay of removal

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition

5    is DISMISSED as moot.    Any pending request for oral argument

6    in this petition is DENIED in accordance with Federal Rule of

7    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O=Hagan Wolfe, Clerk




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