    15-1364
    Jiang v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 303 602
                          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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    5th day of January, two thousand seventeen.

    PRESENT:
             RALPH K. WINTER,
             PETER W. HALL,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    XIU YING JIANG,
             Petitioner,

                     v.                                        15-1364
                                                               NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Stuart Altman, New York, NY.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal
                                         Assistant Attorney General; Justin
                                         Markel, Senior Litigation Counsel;
                                         Margaret A. O’Donnell, Trial
                                         Attorney, Office of Immigration
                                         Litigation, United States
                                         Department of Justice, Washington,
                                         DC.
       UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

       Petitioner Xiu Ying Jiang, a native and citizen of China,

seeks review of a March 26, 2015 decision of the BIA affirming

an August 23, 2013 decision of an Immigration Judge (“IJ”)

denying Jiang’s application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”).              In

re Xiu Ying Jiang, No. A205 303 602 (B.I.A. Mar. 26, 2016), aff’g

No. A205 303 602 (Immig. Ct. N.Y. City Aug. 23, 2013).          We assume

the    parties’    familiarity   with   the   underlying    facts    and

procedural history in this case.

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

Yun-Zui Guan v. Gonzales, 432 F.3d 391, 395 (2d Cir. 2005).

The applicable standards of review are well established.             See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).

       Under the REAL ID Act of 2005, the agency may, in light of

“the    totality    of   the   circumstances,”    base     an    adverse

credibility determination on an applicant’s “demeanor, candor,
                                  2
or responsiveness,” the plausibility of her account, and

inconsistencies in her statements, “without regard to whether”

those inconsistencies go “to the heart of the applicant’s

claim.”     8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

534 F.3d 162, 166 (2d Cir. 2008).         Under the “substantial

evidence” standard of review, “we defer . . . to an IJ’s

credibility determination unless, from the totality of the

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

make such an adverse credibility ruling.”    Xiu Xia Lin, 534 F.3d

at 166.

    The IJ’s adverse credibility determination against Jiang

is sound.    The IJ reasonably relied on internal inconsistencies

within Jiang’s testimony and between her testimony and her

documentary evidence.     For example, Jiang testified that after

her friend was released from detention, she spent four days on

a hunger strike and then was herself released on August 5.    But

she also testified that she stopped eating in mid-July, which

would put her release date much earlier.    Jiang denies that she

specified when she began her hunger strike or that it began

immediately after her friend’s release.       But that denial is

belied by the record: she testified that she stopped eating in
                                 3
mid-July, “at the time when my church member was released.”

    The IJ cited Jiang’s failure to mention her time in hiding

on her asylum application, despite her testimony that, after

the police searched her house in October 2011, she hid at a

friend’s house for about five days and then fled China.    As a

general matter, “asylum applicants are not required to list

every incident of persecution on their I-589 statements.”

Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006).   But according

to Jiang’s testimony, her time in hiding immediately preceded

her hastened departure from China, and in fact was the reason

she left.   The IJ was entitled to rely on this omission in

deeming Jiang’s testimony not credible: as we have observed,

“[a]n inconsistency and an omission are, for these purposes,

functionally equivalent.”   Xiu Xia Lin, 534 F.3d at 166 n.3;

see id. at 167 (holding that petitioner’s failure to disclose

the length of his detention in his asylum application was a

proper basis for the IJ’s adverse credibility determination).

Jiang presses her explanation for the omission: she wanted to

protect the friend who housed her.   But Jiang testified to her

friend’s name at the merits hearing, and she could have omitted

any identifying information in her application, making this
                              4
explanation implausible.     Majidi v. Gonzales, 430 F.3d 77, 80

(2d Cir. 2005) (explaining that the agency is not required to

credit an explanation that is merely plausible or possible).

       The IJ noted another discrepancy between Jiang’s testimony

and her documentary evidence: Jiang testified that she and her

friend were arrested together in both April and June, but the

friend’s statement said nothing about their June detention.

Jiang professed not to know the reason for this omission.

       The IJ cited several other inconsistencies in Jiang’s

testimony.      When asked how many fellow church members were

arrested in April 2011, she responded “Twelve; eight plus me

and Jing, Chun Ying.”    On cross-examination, Jiang said, “[M]e

and Jing Chun Ying, eight” were arrested.      Similar confusion

arose when she was asked how many police officers raided the

church in April 2011: Jiang first responded 10, but on

cross-examination changed that response to 12.       Jiang posits

that    these   arithmetic   discrepancies   are   rooted   in   the

Government attorney’s confusion over whether the figures

included her and her friend, and claims that she always said

that 8 parishioners were arrested by 12 officers.       Again, the

IJ was not compelled to accept this explanation, Majidi, 430
                                 5
F.3d at 80; moreover, Jiang never testified that she was

including herself and her friend in the figure, and her

“attorney’s      unsworn    statements         in    [her]   brief   are   not

evidence,” Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009).

      Finally, the IJ cited Jiang’s confusing testimony about how

she   traveled    from     Malaysia       to   the    United   States.      On

cross-examination, Jiang testified that after hiding in Iran,

she traveled to Greece.        When asked how she made that trek,

Jiang responded that she climbed a mountain on the border of

Iran and Greece and afterwards “took the gliding boat over.”

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

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

story is inherently implausible.”              Wensheng Yan v. Mukasey, 509

F.3d 63, 66 (2d Cir. 2007).       Such a finding cannot be based on

“bald speculation or caprice.”            Zhou Yun Zhang v. INS, 386 F.3d

66, 74 (2d Cir. 2004), overruled on other grounds by Shi Liang

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

one that is based on “speculation that inheres in inference is

not ‘bald’ if the inference is made available to the factfinder

by record facts, or even a single fact, viewed in the light of

common sense and ordinary experience.”               Siewe v. Gonzales, 480
                                      6
F.3d 160, 168-69 (2d Cir. 2007).                   Here, basic geography

supports the IJ’s inference: Iran and Greece do not share a

border.

      Jiang’s applications for asylum, withholding of removal,

and CAT relief were all based on the same factual predicate,

and   so   the    agency’s   sound     credibility       determination    was

dispositive as to all three.           See Paul v. Gonzales, 444 F.3d

148, 156-57 (2d Cir. 2006).

      Jiang      argues   that   she       independently    established    a

well-founded fear of persecution and a likelihood of torture

based on her practice of Christianity in the United States.               But

the   IJ   determined     that   Jiang       was   not   credible   without

distinguishing between her current practice of Christianity and

her past persecution.        In other words, the IJ made a unitary,

not bifurcated, credibility determination.                Paul, 444 F.3d at

154 (“[A]n applicant may prevail on a theory of future

persecution despite an IJ’s adverse credibility ruling as to

past persecution, so long as the factual predicate of the

applicant’s claim of future persecution is independent of the

testimony that the IJ found not to be credible.” (emphasis

omitted).     To the extent Jiang’s brief can be read to raise a
                                       7
due process claim, as the Government notes, any such claim is

unexhausted.     Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

123 (2d Cir. 2007) (“Judicially-imposed doctrines of issue

exhaustion . . . will usually mean that issues not raised to

the BIA will not be examined by the reviewing court.”); 8 U.S.C.

§ 1252(d)(1).     We therefore decline to consider it.      SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court,

in   dealing   with   a   determination   or   judgment   which   an

administrative agency alone is authorized to make, must judge

the propriety of such action solely by the grounds invoked by

the agency.”).

     For the foregoing reasons, the petition for review is

DENIED.

                               FOR THE COURT:
                               Catherine O=Hagan Wolfe, Clerk




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