     15-2868
     Liang v. Sessions
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A205 235 719

                              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   13th day of March, two thousand seventeen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PIERRE N. LEVAL,
 9            JOSÉ A. CABRANES,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHOU HUI LIANG,
14            Petitioner,
15
16                       v.                                          15-2868
17                                                                   NAC
18   JEFFERSON B. SESSIONS, III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Stuart Altman, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Terri J.
27                                       Scadron, Assistant Director; Wendy

     
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
     Jefferson B. Sessions, III, is automatically substituted for former Attorney
     General Loretta E. Lynch as Respondent.
1                               Benner-León, Trial Attorney, Office
2                               of Immigration Litigation, United
3                               States   Department   of   Justice,
4                               Washington, D.C.
5

6        UPON DUE CONSIDERATION of this petition for review of a

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

8    ORDERED, ADJUDGED, AND DECREED that the petition for review is

9    DENIED.

10       Petitioner Zhou Hui Liang, a native and citizen of the

11   People’s Republic of China, seeks review of an August 27, 2015,

12   decision of the BIA, affirming a December 3, 2014, decision of

13   an Immigration Judge (“IJ”) denying Liang’s application for

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

15   Against Torture (“CAT”).   In re Zhou Hui Liang, No. A205 235

16   719 (B.I.A. Aug. 27, 2015), aff’g No. A205 235 719 (Immig. Ct.

17   N.Y. City Dec. 3, 2014).   We assume the parties’ familiarity

18   with the underlying facts and procedural history in this case.

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

20   the IJ’s and BIA’s decisions.       Yun-Zui Guan v. Gonzales, 432

21   F.3d 391, 394 (2d Cir. 2005).        The applicable standards of

22   review are well established.        See 8 U.S.C. § 1252(b)(4)(B);

23   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).



                                     2
1        The     agency   may   base   a       credibility    determination    on

2    inconsistencies in an applicant’s testimony and among his

3    testimony, prior statements, and supporting evidence.                  See 8

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

5    “We defer . . . to an IJ’s credibility determination unless,

6    from the totality of the circumstances, it is plain that no

7    reasonable fact-finder could make such an adverse credibility

8    ruling.”    Xiu Xia Lin, 534 F.3d at 167.              As discussed below,

9    the adverse credibility determination rests on substantial

10   evidence.

11       The     agency   reasonably       relied      on    an     inconsistency

12   concerning the date of Liang’s arrest, an event central to his

13   claim of past persecution.        See 8 U.S.C. § 1158(b)(1)(B)(iii);

14   Xiu Xia Lin, 534 F.3d at 167; Xian Tuan Ye v. Dep’t of Homeland

15   Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that an

16   inconsistency material to the alleged persecution that is the

17   basis of a claim is substantial evidence).                   Liang testified

18   that he was arrested on June 3, 2011, during a church service.

19   When prompted by his attorney, Liang changed the date to March

20   6, 2011, explaining that he was “very nervous.”                      The IJ

21   reasonably rejected this explanation, noting the difference in

22   seasons between March and June and concluding that “[i]nverting

                                           3
1    the month and day is more likely to be an error committed by

2    someone who has memorized a statement.”                 See Majidi v.

3    Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

4    do more than offer a plausible explanation for his inconsistent

5    statements to secure relief; he must demonstrate that a

6    reasonable   fact-finder   would       be   compelled   to   credit   his

7    testimony.” (quoting Zhou Yun Zhang v. INS, 386 F.3d 77, 76 (2d

8    Cir. 2004))).   Nor would the agency be compelled to accept

9    Liang’s current explanation that he ultimately gave the date

10   consistent with his application, as it does not account for the

11   initial inconsistent testimony.         Id.

12       The agency also reasonably relied on inconsistencies

13   between Liang’s testimony and evidence concerning his church

14   attendance in the United States.            Liang’s testimony that he

15   attended church “once a week or once every two weeks” clearly

16   conflicted with a letter from his church that he attended only

17   16 times between April 2012 and November 2014.           The IJ was not

18   compelled to accept Liang’s response that he sometimes forgot

19   to sign in when he arrived late, as it did not account for the

20   substantial discrepancy between the 16 times stated in the

21   church’s letter and the 60 to 120 times to which he testified.

22   See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007)

                                        4
1    (“[I]n assessing the credibility of an asylum applicant’s

2    testimony, an IJ is entitled to consider whether the applicant’s

3    story is inherently implausible.”).       Moreover, as the IJ

4    pointed out, this inconsistency was particularly troubling

5    because the church’s letter reflected that Liang attended

6    church less frequently following his baptism in April 2012,

7    calling into question the sincerity of his religious beliefs.

8        Liang’s credibility concerning his church attendance in

9    the United States was further undermined by his lack of recall

10   of a sermon he heard two days before he testified.      Liang’s

11   argument, that his ability to name the pastor of the church

12   renders his testimony credible, is not compelling because it

13   does not actually explain his failure to testify to any detail

14   regarding the sermon.   See Majidi, 430 F.3d at 80.

15       Having questioned Liang’s credibility, the agency did not

16   err in concluding that Liang’s corroborating evidence was

17   insufficient to rehabilitate his testimony.    See Biao Yang v.

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

19   failure to corroborate his . . . testimony may bear on

20   credibility, because the absence of corroboration in general

21   makes an applicant unable to rehabilitate testimony that has

22   already been called into question.”).        “We defer to the

                                    5
1    agency’s determination of the weight afforded to an alien’s

2    documentary evidence.”   Y.C. v. Holder, 741 F.3d 324, 334 (2d

3    Cir. 2013).   The agency reasonably accorded diminished weight

4    to letters from Liang’s mother and church friend.   The letters

5    were unsworn, prepared for the purpose of litigation and from

6    interested parties not subject to cross examination.        See

7    Matter of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209, 215 (B.I.A.

8    2010) (agency may give little weight to document drafted by

9    interested witness not subject to cross examination), rev’d on

10   other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.

11   2012).

12       Liang argues that the agency erred in relying on a purported

13   inconsistency concerning his father’s profession.       Liang’s

14   application and testimony reported that his father was a

15   fisherman, but his household registration booklet listed his

16   father’s profession as a “farmer.”   On appeal to the BIA, Liang

17   submitted evidence that fishing is a type of farming.      Even

18   assuming that the agency erred in relying on this inconsistency,

19   the error is not fatal because the totality of the circumstances

20   outlined above nonetheless supports the adverse credibility

21   determination.   See Lianping Li v. Lynch, No. 15-219, 2016 WL

22   5799651, at *3 (2d Cir. Oct. 5, 2016); Siewe v. Gonzales, 480

                                    6
1    F.3d    160,   166-67   (2d    Cir.       2007).   Given   the   multiple

2    inconsistencies related to the bases of the claims and the lack

3    of reliable corroborating evidence, it cannot be said “that no

4    reasonable fact-finder could make such a credibility ruling.”

5    Xiu Xia Lin, 534 F.3d at 167.                The credibility ruling is

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

7    because all three forms of relief are based on the same factual

8    predicate.     Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

9    2006).

10          For the foregoing reasons, the petition for review is

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

12   that the Court previously granted in this petition is VACATED,

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

14   is DISMISSED as moot.         Any pending request for oral argument

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

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

17   34.1(b).

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




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