     17-3704
     Jin v. Barr
                                                                                     BIA
                                                                                Cassin, IJ
                                                                     A202 039 163/164/165
                        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 9th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RAYMOND J. LOHIER, JR.,
10            CHRISTOPHER F. DRONEY,
11                 Circuit Judges.
12   _____________________________________
13
14   ZHENGLONG JIN, HONG ZHOU, XIAO
15   ZHEN JIN,
16
17                       Petitioners,
18
19                 v.                                            17-3704
20                                                               NAC
21   WILLIAM P. BARR, UNITED STATES
22   ATTORNEY GENERAL,
23
24                 Respondent.
25   _____________________________________
26
27   FOR PETITIONERS:                   Louis H. Klein, The Kasen Law
28                                      Firm, PLLC, Flushing, NY.
29
1    FOR RESPONDENT:                Chad A. Readler, Acting Assistant
2                                   Attorney General; Mary Jane
3                                   Candaux, Assistant Director; Remi
4                                   da Rocha-Afodu, Trial Attorney,
5                                   Office of Immigration Litigation,
6                                   United States Department of
7                                   Justice, Washington, DC.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED that the petition for review

12   is DENIED.

13       Zhenglong      Jin   and   his    wife    Hong   Zhou,   natives   and

14   citizens of China, and their minor child Xiao Zhen Jin, a

15   native of South Korea and citizen of China, seek review of an

16   October 16, 2017, decision of the BIA affirming a March 22,

17   2017, decision of an Immigration Judge (“IJ”) denying asylum,

18   withholding   of    removal,    and       relief   under   the   Convention

19   Against Torture (“CAT”).         In re Zhenglong Jin, Hong Zhou,

20   Xiao Zhen Jin, Nos. A 202 039 163/164/165 (B.I.A. Oct. 16,

21   2017), aff’g Nos. A 202 039 163/164/165 (Immig. Ct. N.Y. City

22   Mar. 22, 2017).     We assume the parties’ familiarity with the

23   underlying facts and procedural history in this case.

24       Jin’s counsel has submitted essentially the same brief

25   used for his BIA appeal, and contests only one finding
                                           2
1    underlying       the     adverse          credibility         determination.

2    Accordingly,     counsel    has   waived     review      of   the    following

3    determinations: (1) inconsistencies in Jin’s statements and

4    between his statements and those of his wife regarding the

5    location   of    Jin’s     daughter       when    he    was   released     from

6    detention, whether Jin has a brother in the United States,

7    and whether Jin and his wife received a fine receipt; and (2)

8    Jin’s failure to rehabilitate his testimony with reliable

9    corroborative evidence.        See Yueqing Zhang v. Gonzales, 426

10   F.3d 540, 541 n.1 (2d Cir. 2005) (“Issues not sufficiently

11   argued in the briefs are considered waived and normally will

12   not be addressed on appeal.” (quoting Norton v. Sam’s Club,

13   145 F.3d 114, 117 (2d Cir. 1998))). The waiver is significant

14   because,   as    discussed    below,      these    findings      support    the

15   adverse credibility determination in this case.                     See Shunfu

16   Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008).

17         Even absent waiver, we would deny the petition because

18   the   adverse    credibility      determination          is   supported     by

19   substantial evidence. See Hong Fei Gao v. Sessions, 891 F.3d

20   67,   76   (2d   Cir.    2018)     (reviewing          adverse   credibility

21   determination      under      substantial          evidence         standard).
                                           3
1    “Considering the totality of the circumstances,” a factfinder

2    “may base a credibility determination on . . . the consistency

3    between the applicant’s . . . written and oral statements .

4    . . , the internal consistency of each such statement, [and]

5    the consistency of such statements with other evidence of

6    record.”   8 U.S.C. § 1158(b)(1)(B)(iii).   “We defer . . . to

7    an IJ’s credibility determination unless, from the totality

8    of the circumstances, it is plain that no reasonable fact-

9    finder could make such an adverse credibility ruling.”     Xiu

10   Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord

11   Hong Fei Gao, 891 F.3d at 76.

12       The agency reasonably relied on multiple inconsistencies

13   between Jin’s prior statements and his testimony and that of

14   his wife to support the adverse credibility determination.

15   See 8 U.S.C. § 1158(b)(1)(B)(iii).       The record reflects

16   inconsistent statements about whether Jin missed any weekly

17   police check-ins, whether he told the police about trips to

18   South Korea, Turkey and Egypt, the location of his daughter

19   at the time of his release from detention, and whether he had

20   a brother living in the United States.      The agency was not

21   compelled to accept the explanations provided by Jin and Zhou,
                                     4
1    which    largely    amounted       to       claims   of   forgetfulness     or

2    confusion.      See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

3    2005) (“A petitioner must do more than offer a plausible

4    explanation for his inconsistent statements to secure relief;

5    he must demonstrate that a reasonable fact-finder would be

6    compelled to credit his testimony.” (internal quotation marks

7    omitted)).

8           Having questioned Jin’s credibility, the agency also

9    reasonably      relied     on    his    failure      to   rehabilitate     his

10   testimony with reliable corroborating evidence.                       See Biao

11   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

12   applicant’s failure to corroborate his or her testimony may

13   bear on credibility, because the absence of corroboration in

14   general makes an applicant unable to rehabilitate testimony

15   that has already been called into question.”).                    The agency

16   was not required to credit letters from Jin’s father and a

17   friend in China.         See Y.C. v. Holder, 741 F.3d 324, 334 (2d

18   Cir.    2013)    (holding       that    “[w]e    defer    to    the   agency’s

19   determination      of     the     weight       afforded    to    an    alien’s

20   documentary evidence” and deferring to decision to afford

21   little weight to spouse’s letter because it was unsworn and
                                             5
1    from an interested witness).

2        Although   the   IJ’s   decision    may   have    overstated

3    inconsistencies regarding the fine receipt and between Jin’s

4    and his wife’s testimony about Jin’s brother, given the

5    multiple inconsistencies identified above and the lack of

6    reliable corroboration, the adverse credibility determination

7    is supported by substantial evidence.    See Xiu Xia Lin, 534

8    F.3d at 165-66. That determination is dispositive of asylum,

9    withholding of removal, and CAT relief because all three

10   claims are based on the same factual predicate.      See Paul v.

11   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

13   DENIED.

14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe,
16                               Clerk of Court




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