     16-763
     Yang v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A201 133 890
                             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   24th day of August, two thousand seventeen.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            PETER W. HALL,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   DONG YANG,
14                            Petitioner,
15
16                      v.                                           16-763
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Keith S. Barnett, New York, NY.
24
25   FOR RESPONDENT:                   Benjamin C. Mizer, Principal Deputy,
26                                     Assistant Attorney General; Andrew N.
27                                     O’Malley, Senior Litigation Counsel;
28                                     Kimberly A. Burdge, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United States Department of Justice,
31                                     Washington, DC.
32
1         UPON DUE CONSIDERATION of this petition for review of a Board

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

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

4         Petitioner Dong Yang, a native and citizen of the People’s

5    Republic of China, seeks review of a February 10, 2016, decision

6    of the BIA, affirming an April 6, 2015, decision of an Immigration

7    Judge (“IJ”) denying Yang’s application for asylum, withholding

8    of removal, and relief under the Convention Against Torture

9    (“CAT”).    In re Dong Yang, No. A201 133 890 (B.I.A. Feb. 10,

10   2016), aff’g No. A201 133 890 (Immig. Ct. N.Y. City Apr. 6, 2015).

11   We assume the parties’ familiarity with the underlying facts

12   and procedural history in this case.

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

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

15   391, 394 (2d Cir. 2005). The applicable standards of review are

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

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

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

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

20   circumstances,” base a credibility finding on inconsistencies

21   in an asylum applicant’s statements and other record evidence

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

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

                                     2
1    § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64.

2    For the reasons that follow, we conclude that substantial

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

4    credible.

5         The agency’s credibility determination is supported by the

6    inconsistency between Yang’s testimony that his roommate Richard

7    introduced him to Christianity and his written application,

8    which stated that he was inspired to practice Christianity after

9    seeing other cruise-ship passengers worshipping together. See

10   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“[O]ur review

11   . . . is designed to ensure merely that credibility findings

12   are based upon neither a misstatement of the facts in the record

13   nor bald speculation or caprice[.]” (internal citations and

14   quotation marks omitted)).

15        The agency’s adverse credibility determination is further

16   supported by two inconsistencies between Yang’s testimony and

17   a letter from his friend, Chang Ning Ping.          First, Yang

18   testified that he and Ping practiced Christianity together in

19   China; however, Ping’s letter omitted this information.      See

20   Xiu Xia Lin, 543 F.3d at 166-67 & n.3 (“An inconsistency and

21   an   omission    are,   for   these    purposes,   functionally

22   equivalent.”).   To explain Ping’s omission, Yang introduced an

23   additional inconsistency: he stated that Ping attended a

                                     3
1    different church.    See Majidi, 430 F.3d at 80 (requiring that

2    explanations   for    inconsistencies         “demonstrate       that    a

3    reasonable   fact-finder   would       be   compelled   to    credit    his

4    testimony” (internal quotation marks omitted)).              Second, Yang

5    testified that, following his detention and interrogation, he

6    was admitted to the hospital on April 7.         Ping’s letter stated

7    that Yang went to the hospital on April 10.             The IJ was not

8    compelled to accept Yang’s explanation that this was Ping’s

9    error, particularly given that Yang testified that he was

10   familiar with the contents of Ping’s letter but entered it into

11   evidence without any explanation of the error.               See id.

12       The agency’s adverse credibility determination is further

13   supported by two additional inconsistencies.             First, Yang’s

14   wife’s letter omitted any discussion about how she learned of

15   his Christianity, while Yang testified she saw him praying.

16   Second, Yang admitted that he listed only a New York address

17   on his asylum application, despite living outside New York until

18   August 2013. An IJ has broad discretion to rely on collateral

19   discrepancies, like these, where, as here, “the totality of the

20   circumstances establishes that an asylum applicant is not

21   credible.” Xiu Xia Lin, 534 F.3d at 167 (internal citation and

22   quotation marks omitted).



                                        4
1         The     agency’s      adverse   credibility    determination   is

2    bolstered by Yang’s failure to offer evidence that rehabilitated

3    his testimony. The IJ reasonably found that the letters from

4    Yang’s wife and Ping did not corroborate Yang’s testimony, given

5    the contradictions and omissions described above. See Biao Yang

6    v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

7    failure to corroborate his or her testimony may bear on

8    credibility, because the absence of corroboration in general

9    makes an applicant unable to rehabilitate testimony that has

10   already been called into question.”). Moreover, we defer to the

11   agency’s decision to afford diminished weight to Yang’s letters.

12   See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).

13        Given     the     inconsistencies    and      lack   of   reliable

14   corroboration, the IJ reasonably found Yang not credible. See

15   8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

16   at   165-66.         The   adverse   credibility    determination    is

17   dispositive of asylum, withholding of removal, and CAT relief

18   because all three claims are based on the same factual predicate.

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

20        For the foregoing reasons, the petition for review is

21   DENIED. The motion for a stay of removal in this petition is

22   also DISMISSED as moot. Any pending request for oral argument

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

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

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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