         10-2093-ag
         Jiang v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A093 408 604
                            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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                GERARD E. LYNCH,
 9                RAYMOND J. LOHIER, JR.,
10                       Circuit Judges.
11       _____________________________________
12
13       YONG CI JIANG,
14                Petitioner,
15
16                         v.                                   10-2093-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Khaghendra Gharti-Chhetry, New York,
24                                     New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Yanal H. Yousef,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 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 Yong Ci Jiang, a native and citizen of the

 6   People’s Republic of China, seeks review of an April 30,

 7   2010, order of the BIA, affirming, upon reconsideration, the

 8   December 17, 2007, decision of Immigration Judge (“IJ”)

 9   Thomas J. Mulligan, which denied his application for asylum,

10   withholding of removal, and relief under the Convention

11   Against Torture (“CAT”), and denying his motion to reopen.

12   In re Yong Ci Jiang, No. A093 408 604 (B.I.A. Apr. 30,

13   2010), aff’g No. A093 408 604 (Immig. Ct. N.Y. City Dec. 17,

14   2007).   We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16   I.   Asylum, Withholding of Removal, and CAT

17        Under the circumstances of this case, we have reviewed

18   both the IJ’s and the BIA’s opinions “for the sake of

19   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

20   2008).   The applicable standards of review are well-

21   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

22   Holder, 562 F.3d 510, 513 (2d Cir. 2009).     For applications

23   governed by the REAL ID Act of 2005, the agency may,

                                     2
 1   considering the totality of the circumstances, base a

 2   credibility finding on an asylum applicant’s demeanor, the

 3   plausibility of his account, and inconsistencies in his

 4   statements, without regard to whether they go “to the heart

 5   of the applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii);

 6   see also In re J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).

 7   Analyzed under the REAL ID Act, the agency’s adverse

 8   credibility determination is supported by substantial

 9   evidence.

10       In finding Jiang’s testimony not credible, the IJ

11   relied in part on his demeanor, noting that when confronted

12   with questions that raised doubts as to his credibility on

13   cross-examination, he “conveyed the impression that he was

14   crying” in a manner that was “clearly contrived.”   Because

15   the IJ was in the best position to observe Jiang’s manner

16   while testifying, we afford his demeanor finding particular

17   deference.   See Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74

18   (2d Cir. 2004), overruled on other grounds by Shi Liang Lin

19   v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007).

20   Moreover, because the agency, in conjunction with the

21   demeanor finding, identified an inconsistency in Jiang’s

22   testimony, we may more confidently rely on the IJ’s finding.


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

 2   (2d Cir. 2006).

 3       Reliance by the agency on an inconsistency in Jiang’s

 4   testimony regarding whether he paid a fine to family

 5   planning officials was reasonable.     See Xiu Xia Lin v.

 6   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see also 8 U.S.C.

 7   § 1158(b)(1)(B)(iii).    Jiang argues that his testimony was

 8   not inconsistent, because he never explicitly testified that

 9   he personally paid the fine, and he meant that his mother

10   paid the fine while he was in hiding.    Review of the record,

11   however, supports the agency’s understanding of Jiang’s

12   testimony and its finding that his testimony was

13   inconsistent.     See Borovikova v. U.S. Dep’t of Justice, 435

14   F.3d 151, 161 (2d Cir. 2006) (noting that while the Court

15   “can never be certain that the IJ correctly evaluated a

16   petitioner’s truthfulness, the statute that governs our

17   review rests on the presumption that the IJ is in a better

18   position than a reviewing tribunal to decide such

19   questions”); see also Majidi v. Gonzales, 430 F.3d 77, 80-81

20   (2d Cir. 2005) (holding that the agency need not credit an

21   applicant’s explanations for inconsistent testimony unless

22   those explanations would compel a reasonable factfinder to


                                     4
 1   do so).

 2       Ultimately, because a reasonable fact-finder would not

 3   be compelled to make contrary findings, the IJ’s adverse

 4   credibility determination is supported by substantial

 5   evidence.   See Xian Tuan Ye v. Dep’t of Homeland Security,

 6   446 F.3d 289, 294 (2d Cir. 2006).   Because Jiang’s

 7   withholding of removal and CAT claims were based on the same

 8   factual predicate as his asylum claim, the adverse

 9   credibility determination is dispositive.     See Paul v.

10   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (withholding of

11   removal); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

12   520, 523 (2d Cir. 2006) (CAT).

13   II. Motion to Reopen

14       We have reviewed the BIA’s denial of Jiang’s motion to

15   reopen for abuse of discretion, Ali v. Gonzales, 448 F.3d

16   515, 517 (2d Cir. 2006), mindful of the Supreme Court’s

17   admonition that motions to reopen are “disfavored,” see

18   Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006).

19   Here, the BIA did not abuse its discretion in denying

20   Jiang’s motion to reopen based on his failure to establish

21   his prima facie eligibility for relief.     See INS v. Abudu,

22   485 U.S. 94, 104 (1988).

23       Jiang argues that the BIA improperly discounted a
                                   5
 1   notice instructing him to report for sterilization, which he

 2   submitted with his motion to reopen.     However, in light of

 3   the agency’s reasonable adverse credibility determination,

 4   the BIA did not err in finding that this document was

 5   insufficient to rehabilitate Jiang’s credibility given that

 6   the notice does not resolve the inconsistency in Jiang’s

 7   testimony or the problem with his demeanor, and was thus

 8   insufficient to demonstrate his prima facie eligibility for

 9   relief.   See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005).

10   Accordingly, the BIA did not abuse its discretion in denying

11   Jiang’s motion to reopen.     See id.

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

15   is VACATED, and any pending motion for a stay of removal in

16   this petition is DISMISSED as moot.     Any pending request for

17   oral argument in this petition is DENIED in accordance with

18   Federal Rule of Appellate Procedure 34(a)(2), and Second

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




                                     6
