     15-2787
     Jiang v. Boente
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A087 794 867
                            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   3rd day of February, two thousand seventeen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD C. WESLEY,
10            DEBRA ANN LIVINGSTON,
11                 Circuit Judges.
12   _____________________________________
13
14   NAI WU JIANG,
15            Petitioner,
16
17                     v.                                            15-2787
18                                                                   NAC
19   DANA J. BOENTE, ACTING UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.*
22   _____________________________________
23
24
25
26
27
28
29

     * The Clerk of Court is respectfully requested to amend the
     caption to conform to the above.
 1   FOR PETITIONER:            Gary J. Yerman, New York, NY.
 2
 3   FOR RESPONDENT:            Benjamin C. Mizer, Principal Deputy
 4                              Assistant Attorney General; Cindy S.
 5                              Ferrier, Assistant Director;
 6                              Michele Y.F. Sarko, Trial Attorney,
 7                              Office of Immigration Litigation,
 8                              United States Department of Justice,
 9                              Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   DENIED.

15       Petitioner Nai Wu Jiang, a native and citizen of the

16   People’s Republic of China, seeks review of an August 17, 2015,

17   decision of the BIA affirming a December 4, 2013, decision of

18   an Immigration Judge (“IJ”) denying Jiang’s application for

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

20   Against Torture (“CAT”), and concluding that he knowingly made

21   a frivolous application for asylum.    In re Nai Wu Jiang, No.

22   A087 794 867 (B.I.A. Aug. 17, 2015), aff’g No. A087 794 867

23   (Immig. Ct. N.Y. City Dec. 4, 2013).   We assume the parties’

24   familiarity with the underlying facts and procedural history

25   in this case.

26
                                   2
1          We have reviewed the IJ’s decision as modified by the BIA.

2    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

3    (2d Cir. 2005).       Accordingly, we do not address the IJ’s

4    suggestion that Jiang’s asylum claim might have been untimely,

5    because the BIA declined to affirm that finding.          Id.   As to

6    the    agency’s     adverse    credibility    and      frivolousness

7    determinations, the applicable standards of review are well

8    established.      See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

9    Holder, 562 F.3d 510, 513 (2d Cir. 2009).

10   I.    The Adverse Credibility Determination

11         Because a frivolousness finding is only “effective as of

12   the date of a final determination,” 8 U.S.C. § 1158(d)(6), we

13   first consider the denial of relief on the merits.         Under the

14   REAL ID Act, an IJ may, “[c]onsidering the totality of the

15   circumstances . . . base a credibility determination on”

16   inconsistencies in an applicant’s statements and other record

17   evidence “without regard to whether” they go “to the heart of

18   the applicant’s claim.”       8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

19   Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).        Here,

20   substantial    evidence    supports   the    adverse    credibility

21   determination.
                                      3
1           The IJ reasonably relied on Jiang’s admission that he

2    fabricated his initial application to find not credible Jiang’s

3    testimony regarding his practice of Christianity in the United

4    States.    “[A] single false document or a single instance of

5    false testimony may (if attributable to the petitioner) infect

6    the balance of the alien’s uncorroborated or unauthenticated

7    evidence,” justifying the “application of the maxim falsus in

8    uno,    falsus   in   omnibus   [false   in   one   thing,   false   in

9    everything].”     Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

10   2007).     Moreover, the IJ reasonably found Jiang’s claim

11   regarding his Christian religious practice not to be credible,

12   in light of Jiang’s failure to provide robust corroboration of

13   his practice of Christianity (excepting a letter from a church

14   in New York).    See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

15   Cir. 2007). Consequently, the “totality of the circumstances”

16   supports the adverse credibility determination.              8 U.S.C.

17   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.           That

18   determination is dispositive of asylum, withholding of removal,

19   and CAT relief, as all three claims depended on Jiang’s

20   credibility as to his Christianity.       See Paul v. Gonzales, 444

21   F.3d 148, 156 (2d Cir. 2006).
                                       4
1    II.    Frivolousness Finding

2          In making a frivolousness determination, an IJ must

3    (1) give “‘notice to the alien of the consequences of filing

4    a frivolous application’”; (2) make “‘a specific finding . .

5    . that the alien knowingly filed a frivolous application’”;

6    (3) identify “‘sufficient evidence in the record to support the

7    finding that a material element of the asylum application was

8    deliberately fabricated’”; and (4) allow the alien “‘sufficient

9    opportunity to account for any discrepancies or implausible

10   aspects of the claim.’”        Mei Juan Zheng v. Mukasey, 514 F.3d

11   176, 180 (2d Cir. 2008) (quoting Matter of Y-L-, 24 I. & N. Dec.

12   151, 155 (BIA 2007)).     A “written warning contained in [an]

13   asylum application” can provide sufficient notice of the

14   consequences of filing a frivolous application.        Gade Niang v.

15   Holder, 762 F.3d 251, 254 (2d Cir. 2014).           A frivolousness

16   finding must be supported by a preponderance of the evidence.

17   Matter of Y-L-, 24 I. & N. Dec. at 157.

18         Jiang does not dispute that “material elements” of his

19   original application were “deliberately fabricated,” or that

20   he    received   “sufficient    opportunity   to   account   for   any

21   discrepancies or implausible aspects” of his asylum claim.         Mei
                                        5
1    Juan Zheng, 514 F.3d at 180 (internal quotation marks omitted).

2    Instead, he argues that Gade Niang does not apply because, in

3    that case, the petitioner did not dispute that he received and

4    understood the warnings on his application, whereas Jiang

5    testified that those warnings were never translated for him.

6    Gade Niang, 762 F.3d at 254 n.1.

7         As discussed above, the agency’s credibility determination

8    is supported by substantial evidence.        Given this finding on

9    credibility, the IJ was not required to credit Jiang’s testimony

10   that he did not receive notice.         See Siewe, 480 F.3d at 170.

11   Moreover, the record includes sufficient evidence of notice,

12   including signed statements in English and Chinese confirming

13   that the contents of his application were true and that he would

14   be forever barred from receiving immigration benefits if he

15   knowingly filed a frivolous asylum application.        The contents

16   of   the   notice   to   Jiang   were   sufficient.   See   8   U.S.C.

17   §§ 1158(d)(4)(A), (6).

18        Although Jiang argues that he filed the false application

19   under the influence of his previous attorney, this point does

20   not change the fact that Jiang knowingly submitted a fabricated

21   application and testified to the contents of that application
                                        6
1    at his asylum interview.    Accordingly, Jiang received adequate

2    notice, and we see no basis to disturb the agency’s conclusion

3    that Jiang knowingly submitted a frivolous application.      See

4    8 U.S.C. §§ 1158(d)(4)(A), (6); Mei Juan Zheng, 514 F.3d at 180.

5    Further, the frivolousness finding bars Jiang from receiving

6    any immigration benefits arising from his marriage to a U.S.

7    citizen.    See 8 U.S.C. § 1158(d)(6).

8        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

15   34.1(b).

16                                  FOR THE COURT:
17                                  Catherine O=Hagan Wolfe, Clerk




                                      7
