     17-1775
     Deng v. Whitaker
                                                                                   BIA
                                                                            Vomacka, IJ
                                                                           A201 119 201
                             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 11th day of February, two thousand
 5   nineteen.
 6
 7   PRESENT:
 8            ROBERT D. SACK,
 9            DEBRA ANN LIVINGSTON,
10            CHRISTOPHER F. DRONEY,
11                 Circuit Judges.
12   _____________________________________
13   MING DENG,
14            Petitioner,
15
16                      v.                                       17-1775
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Gary Pogil, New York, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; John S. Hogan,
27                                      Assistant Director; Mona Maria
28                                      Yousif, Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      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     Ming    Deng,    a    native     and   citizen   of   the

6    People’s Republic of China, seeks review of a May 11, 2017,

7    decision of the BIA affirming a January 12, 2016, decision of

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

9    asylum,       withholding     of   removal,      and     relief    under    the

10   Convention Against Torture (“CAT”).                  In re Ming Deng, No. A

11   201 119 201 (B.I.A. May 11, 2017), aff’g No. A 201 119 201

12   (Immig. Ct. N.Y. City Jan. 12, 2016).                We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15          We have reviewed the IJ’s decision as modified by the

16   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

17   520,    522     (2d   Cir.    2005).       As   an    initial     matter,   our

18   jurisdiction to review the agency’s denial of asylum as

19   untimely or its conclusion that Deng failed to establish

20   changed circumstances is limited to “constitutional claims or

21   questions of law.”           8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).

22   Deng has identified no error of law, but simply argues that

                                            2
1    the discovery of the religious materials she sent her mother

2    in 2010 was a changed circumstance.              But given that Deng

3    alleged past persecution in China based on her 2004 arrest,

4    the    discovery    of   those   materials      was   not   a   “changed

5    circumstance which materially affect[ed] [her] eligibility

6    for asylum.”        8 U.S.C. § 1158(a)(2)(D).         Accordingly, we

7    review only the denial of withholding of removal and CAT

8    relief.

9          The agency denied withholding of removal and CAT relief

10   on    credibility    grounds.    We    review    adverse    credibility

11   determinations under a substantial evidence standard.               See

12   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d

13   162, 165-66 (2d Cir. 2008).            The governing REAL ID Act

14   credibility standard provides as follows:

15         Considering the totality of the circumstances, and
16         all relevant factors, a trier of fact may base a
17         credibility determination on . . . the inherent
18         plausibility of the applicant’s or witness’s
19         account, the consistency between the applicant’s or
20         witness’s written and oral statements . . . [,] the
21         internal consistency of each such statement, the
22         consistency of such statements with other evidence
23         of record . . . [,] and any inaccuracies or
24         falsehoods in such statements, without regard to
25         whether an inconsistency, inaccuracy, or falsehood
26         goes to the heart of the applicant’s claim, or any
27         other relevant factor.
28
29   8 U.S.C. § 1158(b)(1)(B)(iii).         “We defer . . . to an IJ’s

                                        3
1    credibility determination unless . . . it is plain that no

2    reasonable fact-finder could make such an adverse credibility

3    ruling.”     Xiu    Xia    Lin,    534   F.3d    at    167;    see     8 U.S.C.

4    § 1252(b)(4)(B).

5        The    agency    reasonably     relied      on    Deng’s    inconsistent

6    descriptions of her 2004 arrest, which was her sole allegation

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

8    Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.

9    2006).     Deng’s application stated that the police caught

10   eight    church   members    (including      Deng),     but    released     two

11   because they were handicapped, and took the remaining six

12   church    members    to    the    police   station.           However,    Deng

13   testified repeatedly that eight church members were arrested,

14   taken to the police station, and detained between two days

15   and two weeks.       Although when specifically confronted with

16   her written statement, Deng added that two handicapped church

17   members were released at the police station, this did not

18   resolve    the     inconsistency        given   that     her     application

19   reflected that they were released before being taken to the

20   station.      Nor    was    the    IJ    required      to     accept    Deng’s

21   speculation that the discrepancy was caused by a translation

22   error in her written statement because Deng never submitted

                                          4
1    a corrected translation.          Majidi v. Gonzales, 430 F.3d 77,

2    80-81 (2d Cir. 2005) (“A petitioner must do more than offer

3    a plausible explanation for his inconsistent statements to

4    secure relief; he must demonstrate that a reasonable fact-

5    finder would be compelled to credit his testimony.” (internal

6    quotations omitted)).

7        Deng’s failure to attend church for five years after

8    moving to the United States bolsters the adverse credibility

9    ruling   because    it       undermines    the    credibility   of     her

10   allegations that she was a practicing Christian before 2010,

11   risked arrest to attend church in China, and left China at

12   least in part to seek religious freedom.               Wensheng Yan v.

13   Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (“It is well settled

14   that, in assessing the credibility of an asylum applicant’s

15   testimony,    an   IJ    is    entitled    to    consider   whether    the

16   applicant’s   story     is    inherently   implausible.”).       The    IJ

17   considered and reasonably rejected Deng’s explanations for

18   her failure to attend church until 2010 because there were

19   churches with Mandarin language services in the cities where

20   she was living and her testimony that she could not have

21   outside contact while working as a babysitter in New York

22   City from 2006 until 2009 was undermined by her testimony

                                         5
1    that she had several part-time jobs for different families.

2    Moreover, the five-year gap in Deng’s church attendance is

3    particularly suspicious because she began attending church

4    one month before she applied for asylum.              Cf. Y.C. v. Holder,

5    741 F.3d 324, 338 (2d Cir. 2013) (observing that claims based

6    on activities in the United States are “especially easy to

7    manufacture”).

8           The agency also reasonably determined that the country

9    conditions evidence reflected that treatment of Christians

10   varied    by    region    and   did    not   report   any   incidents     of

11   mistreatment in Deng’s home province of Hubei.                  Jian Hui Shao

12   v.   Mukasey,     546    F.3d   138,   159-62,    174     (2d    Cir.   2008)

13   (upholding BIA’s requirement that applicant demonstrate that

14   officials in his local area enforce a government policy when

15   evidence demonstrates local variations in enforcement of that

16   policy).       In addition to failing as an independent pattern

17   or practice claim, see 8 C.F.R. § 1208.16(b)(2)(i)-(ii), the

18   lack     of    any   evidence     that       Christians     who     attended

19   unregistered churches in Hubei province were arrested or

20   mistreated supports the adverse credibility determination,

21   see Wensheng Yan, 509 F.3d at 66; Biao Yang v. Gonzales, 496

22   F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to

                                            6
1    corroborate his or her testimony may bear on credibility,

2    because the absence of corroboration in general makes an

3    applicant unable to rehabilitate testimony that has already

4    been called into question.”).

5        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

12   34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe,
15                                 Clerk of Court




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