     16-1690
     Yang v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 628 745
                             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   5th day of October, two thousand seventeen.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            PETER W. HALL,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   DECHANG YANG,
14                            Petitioner,
15
16                      v.                                           16-1690
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Aminat Sabak, Law Offices of Yu and
24                                     Associates, PLLC, New York, NY.
25
26   FOR RESPONDENT:                   Benjamin C. Mizer, Principal Deputy,
27                                     Assistant Attorney General; Linda S.
28                                     Wernery, Assistant Director; Kerry A.
29                                     Monaco, Trial Attorney, Office of
 1                           Immigration Litigation, United States
 2                           Department of Justice, Washington, DC.
 3

4        UPON DUE CONSIDERATION of this petition for review of a Board

5    of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

6    ADJUDGED, AND DECREED that the petition for review is DENIED.

7        Petitioner Dechang Yang, a native and citizen of the

8    People’s Republic of China, seeks review of an April 29, 2016,

9    decision of the BIA, affirming a January 7, 2015, decision of

10   an Immigration Judge (“IJ”) denying Yang’s application for

11   asylum, withholding of removal, and relief under the Convention

12   Against Torture (“CAT”). In re Dechang Yang, No. A205 628 745

13   (B.I.A. Apr. 29, 2016), aff’g No. A205 628 745 (Immig. Ct. N.Y.

14   City Jan. 7, 2015). We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16       Under the circumstances of this case, we have reviewed both

17   the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d

18   391, 394 (2d Cir. 2005). The applicable standards of review are

19   well established.   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

20   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

21       For asylum applications like Yang’s, governed by the REAL

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

23   circumstances,” base a credibility finding on inconsistencies



                                    2
1    in an asylum applicant’s statements and other record evidence

2    “without regard to whether” those inconsistencies go “to the

3    heart    of    the    applicant’s    claim.”        8    U.S.C.

4    § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64.

5    For the reasons that follow, we conclude that substantial

6    evidence supports the agency’s determination that Yang was not

7    credible.

8        The agency’s credibility determination is supported by the

9    inconsistency between Yang’s testimony that his friend evaded

10   arrest when their underground church was raided and his friend’s

11   letter stating that he was also arrested and describing his own

12   arrest and detention. See Majidi v. Gonzales, 430 F.3d 77, 79-81

13   (2d Cir. 2005) (“Where the IJ’s adverse credibility finding is

14   based on specific examples in the record of inconsistent

15   statements by the asylum applicant about matters material to

16   his claim of persecution . . . a reviewing court will generally

17   not be able to conclude that a reasonable adjudicator was

18   compelled to find otherwise.”).     Because this inconsistency

19   highlighted dramatically different accounts of an aspect of

20   Yang’s persecution, the IJ was not required to solicit an

21   explanation from Yang before finding him not credible. See id.

22   at 81. Moreover, when confronted by the government’s attorney,



                                    3
1    Yang    provided   no   explanation,   but   merely   reiterated   his

2    testimony.

3           The agency’s adverse credibility determination is further

4    supported by an omission from both Yang’s written application

5    and a letter from his father.      Both documents omitted a detail

6    that Yang testified to: that he was able to use his own passport

7    to leave China, despite his arrest, because his parents paid

8    someone to delete his arrest record from a national database.

9    See Xiu Xia Lin, 534 F.3d at 167 (holding that an IJ may base

10   an adverse credibility determination on “any inconsistency or

11   omission” so long as the totality of the circumstances shows

12   that the petitioner is not credible) (emphasis in original).

13   Yang failed to provide an explanation for the omission, which

14   is notable given his inclusion of the fact that his parents paid

15   someone for his release from detention.

16          The   agency’s    adverse   credibility    determination     is

17   bolstered by the IJ’s finding that Yang failed to offer evidence

18   that rehabilitated his testimony. The IJ reasonably found that

19   the letters from Yang’s father and Lin did not corroborate Yang’s

20   testimony, given the contradictions and omissions described

21   above. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

22   2007) (“An applicant’s failure to corroborate his or her



                                        4
1    testimony may bear on credibility, because the absence of

2    corroboration      in    general    makes    an    applicant    unable     to

3    rehabilitate testimony that has already been called into

4    question.”).      And Yang did not provide reliable evidence to

5    corroborate    his      testimony   that    he    continued    to   practice

6    Christianity in New York. See id. Moreover, we defer to the

7    agency’s determination to afford diminished weight to Yang’s

8    letters because their authors were unavailable for cross

9    examination and Yang’s father was an interested party. See Y.C.

10   v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).

11        Given the inconsistency between Yang’s testimony and Lin’s

12   letter about the sole incident of past persecution, the omission

13   in Yang’s written application and his father’s letter, and the

14   lack of reliable evidence to rehabilitate Yang’s testimony, the

15   IJ   reasonably      found   Yang   not     credible.     See       8   U.S.C.

16   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 165-66.

17   The adverse credibility determination is dispositive of asylum,

18   withholding of removal, and CAT relief because all three claims

19   are based on the same factual predicate.            See Paul v. Gonzales,

20   444 F.3d 148, 156-57 (2d Cir. 2006).

21        For the foregoing reasons, the petition for review is

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



                                          5
1   that the Court previously granted in this petition is VACATED,

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

3   is DISMISSED as moot. Any pending request for oral argument in

4   this petition is DENIED in accordance with Federal Rule of

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

6   34.1(b).

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe, Clerk




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