     18-1704
     Dong v. Barr
                                                                           BIA
                                                                     Poczter, IJ
                                                                  A208 926 041
                         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 18th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   SHENGLIN DONG,
14            Petitioner,
15
16                  v.                                  18-1704
17                                                      NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                Yok-seung Chiu, Esq., Law Office
24                                  of John Yong, PC, New York, NY.
25
26   FOR RESPONDENT:                Ethan P. Davis, Acting Assistant
27                                  Attorney General; Jessica E.
28                                  Burns, Senior Litigation Counsel;
 1                                     Juria L. Jones, Trial Attorney,
 2                                     Office of Immigration Litigation,
 3                                     United States Department of
 4                                     Justice, Washington, DC.

 5         UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9         Petitioner Shenglin Dong, a native and citizen of the

10   People’s Republic of China, seeks review of a May 25, 2018

11   decision of the BIA affirming a June 14, 2017 decision of an

12   Immigration    Judge     (“IJ”)    denying     Dong’s   application   for

13   asylum,    withholding     of     removal,     and   relief   under   the

14   Convention Against Torture (“CAT”).            In re Shenglin Dong, No.

15   A 208 926 041 (B.I.A. May 25, 2018), aff’g No. A 208 926 041

16   (Immig. Ct. N.Y.C. June 14, 2017).              We assume the parties’

17   familiarity with the underlying facts and procedural history.

18         We have reviewed both the IJ’s and the BIA’s opinions

19   “for the sake of completeness.”                Wangchuck v. Dep’t of

20   Homeland   Sec.,   448    F.3d    524,   528   (2d   Cir.   2006).    The

21   standards of review are well established.                   See 8 U.S.C.

22   § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

23   Cir. 2018); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013).

24   The   agency    may,     “[c]onsidering        the   totality    of   the

                                          2
 1   circumstances . . . base a credibility determination on the

 2   demeanor, candor, or responsiveness of the applicant,” the

 3   plausibility     of   his   account,       and   inconsistencies   in   his

 4   statements or between his statements and other evidence,

 5   without regard to whether they go “to the heart of the

 6   applicant’s claim.”           8 U.S.C. § 1158(b)(1)(B)(iii).            “We

 7   defer . . . to an IJ’s credibility determination unless, from

 8   the totality of the circumstances, it is plain that no

 9   reasonable fact-finder could make such an adverse credibility

10   ruling.”    Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

11   2008); accord Hong Fei Gao, 891 F.3d at 76.                 The agency’s

12   adverse credibility determination is supported by substantial

13   evidence.

14         First, the agency reasonably relied on an inconsistency

15   between Dong’s testimony and written statement regarding

16   whether the January 2016 underground church service where he

17   was   arrested    was   the    first       religious   gathering   he   had

18   attended.    Although Dong’s explanation that he believed that

19   his attorney was asking about the first service that was

20   raided by the police is plausible, the agency’s conclusion

21   that Dong understood the question and became confused about

22   the timeline of alleged events in a manner that undermined

                                            3
 1   his credibility is also a reasonable interpretation, and “[a]

 2   petitioner must do more than offer a plausible explanation

 3   for his inconsistent statements to secure relief; he must

 4   demonstrate that a reasonable fact-finder would be compelled

 5   to credit his testimony.”      Majidi v. Gonzales, 430 F.3d 77,

 6   80 (2d Cir. 2005) (internal quotation marks omitted).             The

 7   agency also reasonably concluded that this inconsistency was

 8   significant in the totality of the circumstances because it

 9   involved the timeline of events for Dong’s claim, which was

10   based on his practice of Christianity during a brief period

11   from November 2015 to February 2016.         See Xian Tuan Ye v.

12   Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)

13   (holding   that   material   inconsistency   regarding    basis   of

14   applicant’s asylum claim is substantial evidence for adverse

15   credibility determination).

16       Second,   the   agency   reasonably   relied   on   significant

17   omissions from Dong’s written statement and a letter from his

18   mother.    See Hong Fei Gao, 891 F.3d at 81 (noting that “an

19   omission by a third party may form a basis for an adverse

20   credibility determination”).     In his written statement, Dong

21   claimed the police required him to report back for supervision

22   following his arrest and that his parents warned him that the

                                      4
 1   police would harm him if he returned because he had failed to

 2   report.     During his testimony, Dong added that his mother had

 3   told him that the police had “frequently” come to her home

 4   looking for him after he left China because he had not

 5   reported     as   required.   Certified   Administrative   Record

 6   (“CAR”) at 13.     The letter from Dong’s mother did not mention

 7   the reporting requirement or the repeated police visits to

 8   her home.    While Dong is correct that these omissions did not

 9   directly contradict his testimony, the agency reasonably

10   concluded that these omissions undermined credibility because

11   they involved facts that Dong and his mother would reasonably

12   have been expected to include.      See Hong Fei Gao, 891 F.3d

13   at 78 (“[T]he probative value of a witness’s . . . silence on

14   particular facts depends on whether those facts are ones the

15   witness would reasonably have been expected to disclose.”).

16   Dong did not provide a compelling explanation for these

17   omissions.     See Majidi, 430 F.3d at 80.

18       Third, the agency reasonably concluded that the absence

19   of reliable corroborating evidence further undermined Dong’s

20   credibility.      An asylum applicant’s failure to corroborate

21   his testimony may bear on his credibility “because the absence

22   of corroboration in general makes an applicant unable to

                                     5
 1   rehabilitate testimony that has already been called into

 2   question.”       Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

 3   2007).        As the IJ noted, none of the documentary evidence

 4   corroborated Dong’s testimony that he was required to report

 5   to the police after being released from detention, or that

 6   the police went to his family home looking for him.

 7          Finally, on appeal to the BIA, Dong argued that some of

 8   the    discrepancies       and    omissions      in    the   evidence       were

 9   attributable to his prior attorney, who asked “confusing”

10   questions on direct examination and failed to advise him to

11   supplement his statement.              CAR at 4.       The BIA reasonably

12   rejected       this    argument   because     Dong    bore   the   burden    to

13   establish that he was eligible for relief and he did not

14   comply with any of the procedural requirements for a claim of

15   ineffective       assistance      of   counsel.        See    8    U.S.C.    §§

16   1158(b)(1)(B)(i), 1229a(c)(4)(A); Matter of Lozada, 19 I. &

17   N.     Dec.    637     (B.I.A.    1988)     (setting    forth      procedural

18   requirements for ineffective assistance of counsel claims);

19   see also Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d

20   43, 46–47 (2d Cir. 2005) (failure to substantially comply

21   with     Lozada       requirements     constitutes     forfeiture     of     an

22   ineffective assistance claim).              Moreover, the transcript does

                                             6
 1   not support his claim that the question of whether he had

 2   attended church services before his arrest was misleading.

 3        Because    all   of   Dong’s       claims   rested    on    the   same

 4   discredited    testimony,     the    agency’s     adverse       credibility

 5   determination is dispositive of all forms of relief, and we

 6   do not reach the agency’s alternative holding that, even

 7   assuming the credibility of Dong’s practice of Christianity

 8   in   the   United   States,   he    did   not    carry    his    burden   to

 9   demonstrate a well-founded fear of future persecution based

10   on that practice.     See Paul v. Gonzales, 444 F.3d 148, 156–

11   57 (2d Cir. 2006); INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

12   (“As a general rule courts and agencies are not required to

13   make findings on issues the decision of which is unnecessary

14   to the results they reach.”).

15        For the foregoing reasons, the petition for review is

16   DENIED.    All pending motions and applications are DENIED and

17   stays VACATED.

18                                      FOR THE COURT:
19                                      Catherine O’Hagan Wolfe,
20                                      Clerk of Court




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