     17-789
     Dan v. Barr
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A205 262 532
                        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 19th day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD C. WESLEY,
10            DEBRA ANN LIVINGSTON,
11                 Circuit Judges.
12   _____________________________________
13
14   WEN DAN, AKA DAN WENG,
15            Petitioner,
16
17                 v.                                            17-789
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Richard Tarzia, Belle Mead, NJ.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
27                                    Attorney General; Russell J.E.
28                                    Verby, Senior Litigation Counsel;
29                                    John D. Williams, Trial Attorney,
30                                    Office of Immigration Litigation,
31                                    United States Department of
32                                    Justice, 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 DENIED.

5        Petitioner Wen Dan, a native and citizen of the People’s

6    Republic of China, seeks review of a February 27, 2017,

7    decision of the BIA affirming an April 21, 2016, decision of

8    an Immigration Judge (“IJ”) denying asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Wen Dan, No. A205 262 532 (B.I.A. Feb. 27,

11   2017), aff’g No. A205 262 532 (Immig. Ct. N.Y. City Apr. 21,

12   2016).       We   assume   the   parties’   familiarity   with   the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as modified by the BIA.        See Xue Hong Yang

16   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

17   The applicable standards of review are well established.         See

18   8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d

19   67, 76 (2d Cir. 2018).

20       “Considering the totality of the circumstances, and all

21   relevant factors, a trier of fact may base a credibility

22   determination on the demeanor, candor, or responsiveness of


                                       2
1    the applicant or witness, the inherent plausibility of the

2    applicant’s or witness’s account, the consistency between the

3    applicant’s or witness’s written and oral statements . . . ,

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

5    without regard to whether an inconsistency, inaccuracy, or

6    falsehood        goes   to    the   heart      of    the   applicant’s     claim.”

7    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

8    F.3d      162,    163-64     (2d    Cir.   2008).          Substantial     evidence

9    supports the agency’s determination that Dan was not credible

10   as   to    her     claim     that   police     detained      and   beat    her   for

11   attending an unregistered church in China.

12          The agency reasonably relied in part on Dan’s evasiveness

13   and lack of responsiveness when asked to deviate from her

14   testimony on direct examination, which gave the impression

15   that      she    was    testifying      from     a    script.        See   8 U.S.C.

16   § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81 n.1

17   (2d Cir. 2005) (recognizing that particular deference is

18   given to the trier of fact’s assessment of demeanor).                            That

19   finding is supported by the record, which reflects Dan’s

20   difficulty answering questions directly on cross-examination.

21          The       demeanor     finding      and       the   overall    credibility

22   determination are bolstered by record inconsistencies.                            See


                                                3
1    Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

2    Cir. 2006).     The agency reasonably found that Dan made

3    inconsistent statements regarding whether police raided her

4    church before or after the service had begun and whether her

5    family   attended     church        with   her.        See     8 U.S.C.

6    § 1158(b)(1)(B)(iii).         Dan    did   not    provide    compelling

7    explanations for these inconsistencies.           See Majidi, 430 F.3d

8    at 80 (“A petitioner must do more than offer a plausible

9    explanation   for   h[er]    inconsistent       statements   to     secure

10   relief; [s]he must demonstrate that a reasonable fact-finder

11   would be compelled to credit h[er] testimony.” (internal

12   quotation marks omitted)).

13       The agency also did not err in noting that Dan’s mother’s

14   letter   omitted    that     she     attended     church     with     Dan,

15   particularly given that the letter discusses Dan’s two visits

16   to church in China.   See Hong Fei Gao, 891 F.3d at 82 (finding

17   no error in agency’s reliance on omission from applicant’s

18   mother’s letter of applicant’s beating by police because

19   letter “discusse[d] other post-arrest events”); see also Xiu

20   Xia Lin, 534 F.3d at 166-67 & n.3.          Furthermore, the agency

21   did not err in finding Dan’s explanation for her mother’s

22   omission implausible.       See Wensheng Yan v. Mukasey, 509 F.3d


                                         4
1    63,   66-68    (2d        Cir.     2007)    (recognizing       that        adverse

2    credibility     determination             may   be    based     on        inherent

3    implausibility       if     the     “finding    is    tethered       to     record

4    evidence” or based on common sense).                  Although Dan claimed

5    that her mother did not attend church regularly and did not

6    know that she was attending an underground church, Dan’s

7    mother’s letter discussed Dan’s equally infrequent church

8    attendance and acknowledged that attendance at the church was

9    considered unlawful.

10         Given the demeanor, inconsistency, and implausibility

11   findings,     which       call     into    question    Dan’s     practice      of

12   Christianity, her alleged arrest, and her credibility as a

13   whole, the agency’s adverse credibility determination is

14   supported     by      substantial          evidence.           See        8 U.S.C.

15   § 1158(b)(1)(B)(iii).             That determination is dispositive of

16   asylum, withholding of removal, and CAT relief because all

17   three claims are based on the same factual predicate.1                        See

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

19




     1 Because the IJ denied all relief on credibility grounds,
     Dan’s challenge to the adverse credibility determination
     necessarily included a challenge to the denial of withholding
     of removal and CAT relief.
                                   5
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                             FOR THE COURT:
4                             Catherine O’Hagan Wolfe
5                             Clerk of Court




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