     16-2052
     Gong v. Sessions
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A206 560 419

                             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 19th day of December, two thousand
 5   seventeen.
 6
 7   PRESENT:
 8            DENNIS JACOBS,
 9            PETER W. HALL,
10            DEBRA ANN LIVINGSTON,
11                 Circuit Judges.
12   _____________________________________
13   SHANGBIN GONG,
14            Petitioner,
15
16                      v.                                       16-2052
17                                                               NAC
18   JEFFERSON B. SESSIONS, III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Thomas V. Massucci, New York, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; Holly M. Smith,
27                                      Senior Litigation Counsel; Craig
28                                      A. Newell, Jr., Trial Attorney,
29                                      Office of Immigration Litigation,
30                                      United States Department of
31                                      Justice, Washington, DC.
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 Shangbin Gong, a native and citizen of the

6    People’s Republic of China, seeks review of a June 3, 2016,

7    decision of the BIA, affirming an April 24, 2015, decision of

 8   an Immigration Judge (“IJ”) denying Gong’s application for

 9   asylum,   withholding   of   removal,    and   relief   under   the

10   Convention Against Torture (“CAT”).      In re Shangbin Gong, No.

11   A206 560 419 (B.I.A. June 3, 2016), aff’g No. A206 560 419

12   (Immig. Ct. N.Y. City Apr. 24, 2015).      We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

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

17   completeness.”   Wangchuck v. Dep’t of Homeland Sec., 448

18   F.3d 524, 528 (2d Cir. 2006).       We review the agency’s

19   adverse credibility determination for substantial evidence.

20   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534

21   F.3d 162, 165-66 (2d Cir. 2008).

22

                                     2
 1       For asylum applications like Gong’s, governed by the

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

 3   the circumstances,” base a credibility finding on an

 4   applicant’s “demeanor, candor, or responsiveness,” and on

 5   inconsistencies in an applicant’s statements and evidence.

 6   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

 7   163-64.   “We defer . . . to an IJ’s credibility

 8   determination unless, from the totality of the

 9   circumstances, it is plain that no reasonable fact-finder

10   could make such an adverse credibility ruling.”     Xiu Xia

11   Lin, 534 F.3d at 167.   Substantial evidence supports the

12   adverse credibility determination here.

13       The crux of Gong’s claim is that he was persecuted and

14   fears persecution in China because he sent a letter to the

15   government and the media suggesting five points to reform

16   government institutions and combat corruption.     The agency

17   reasonably relied on inconsistencies between Gong’s

18   testimony, application, and his wife’s letter.     See 8

19   U.S.C. § 1158(b)(1)(B)(iii).   The inconsistencies are

20   reflected in the record and concern the contents of the

21   letter and events on the day of his arrest.   See Xian Tuan

22   Ye v. Dep’t of Homeland Security, 446 F.3d 289, 295 (2d

                                    3
 1   Cir. 2006) (concluding that “a material inconsistency”

 2   relating to “the very persecution from which [the

 3   applicant] sought asylum, . . . afforded substantial

 4   evidence to support the adverse credibility finding”

 5   (internal quotation marks and citation omitted)).     For

 6   example, on cross examination, Gong testified that his

 7   letter identified specific instances of corruption at his

 8   workplace, but neither his application nor direct testimony

 9   included that information.     In addition, he explained that

10   he had not produced a copy of the letter because police

11   searched his home and seized his computer, but his wife’s

12   letter omitted these facts entirely.     Given that these

13   omissions or inconsistencies go directly to the motivation

14   for Gong’s arrest and to events on the day of his arrest,

15   the agency was not required to accept his explanations that

16   he did not know to include such details or that his wife

17   forgot about the search.     See Majidi v. Gonzales, 430 F.3d

18   77, 80 (2d Cir. 2005) (“A petitioner must do more than

19   offer a plausible explanation for his inconsistent

20   statements to secure relief; he must demonstrate that a

21   reasonable fact-finder would be compelled to credit his

22   testimony.” (internal quotation marks omitted)).

                                     4
 1          The adverse credibility determination is bolstered by

 2   the agency’s demeanor finding.               We defer to the demeanor

 3   finding, particularly given the evidence of Gong’s pauses

 4   and difficulty answering questions or providing

 5   explanations for inconsistencies.               Majidi, 430 F.3d at 81

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

 7   (2d Cir. 2006).

 8          Given    the    multiple    inconsistencies     and   the   demeanor

 9   finding,       the    totality    of   the   circumstances   supports    the

10   adverse credibility determination.               Xiu Xia Lin, 534 F.3d at

11   167.    The adverse credibility determination is dispositive

12   of asylum, withholding of removal, and CAT relief because all

13   three forms of relief are based on the same factual predicate.

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

15          For the foregoing reasons, the petition for review is

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

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

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

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

20

21

22

                                             5
1

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

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

4   34.1(b).

5

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




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