     17-1706
     Yang v. Whitaker
                                                                                   BIA
                                                                              Nelson, IJ
                                                                           A200 177 805
                             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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 28th day of December, two thousand eighteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RENNA RAGGI,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12   FENG YANG,
13            Petitioner,
14
15                      v.                                       17-1706
16                                                               NAC
17   MATTHEW G. WHITAKER,
18   UNITED STATES ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                    Mike P. Gao, Flushing, NY.
23
24   FOR RESPONDENT:                    Chad A. Readler, Principal Deputy
25                                      Assistant Attorney General; Paul
26                                      Fiorino, Senior Litigation
27                                      Counsel; Judith R. O’Sullivan,
28                                      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 DISMISSED in part and DENIED in part.

5        Petitioner      Feng   Yang,    a   native     and   citizen   of   the

6    People’s Republic of China, seeks review of a May 19, 2017,

7    decision of the BIA affirming a September 20, 2016, decision

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

9    asylum,    withholding     of     removal,   and     relief    under    the

10   Convention Against Torture (“CAT”).              In re Feng Yang, No.

11   A200 177 805 (B.I.A. May 19, 2017), aff’g No. A200 177 805

12   (Immig. Ct. N.Y. City Sept. 20, 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 supplemented by

16   the BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

17   Cir. 2005).     The applicable standards of review are well

18   established.    See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

19   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)(per curiam);

20   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       I.     Asylum

22       An asylum applicant must “demonstrate[] by clear and

23   convincing    evidence     that   the application        has   been    filed
                                         2
1    within 1 year after the date of the alien’s arrival in the

2    United     States,”       or     “either            the     existence         of     changed

3    circumstances       which       materially                affect     the      applicant’s

4    eligibility       for     asylum       or          extraordinary           circumstances

5    relating to the delay in filing an application.”                               8 U.S.C. §

6    1158(a)(2)(B), (D).            Our jurisdiction to review the agency’s

7    finding    that     an   application               was    untimely       is   limited       to

8    “constitutional          claims       or           questions        of     law.”           Id.

9    § 1252(a)(2)(D);         see    id.    § 1158(a)(3);                Joaquin-Porras          v.

10   Gonzales, 435 F.3d 172, 177-78 (2d Cir. 2006).

11       We     dismiss       the    petition            as    to   asylum      for      lack    of

12   jurisdiction.       Yang claimed that he did not apply for asylum

13   on arriving in the United States because he did not speak

14   English and had to repay his snakehead.                                  Yang does not

15   challenge     the     agency’s        factual             determination            that    the

16   language     barrier       and     his             outstanding       debt        were      not

17   extraordinary       circumstances              excusing         a    ten-year         delay.

18   Although he now contends that political activities in the

19   United     States     constitute           a       changed      circumstance,             this

20   argument is unexhausted, see Lin Zhong v. U.S. Dep’t of

21   Justice, 480 F.3d 104, 122 (2d Cir. 2007), and the explanation

22   implicates the adverse credibility determination, which is an


                                                    3
1    unreviewable factual determination in this context and, as

2    discussed below, is supported by substantial evidence.

3         II. Adverse Credibility Determination

4         “Considering the totality of the circumstances, . . . a

5    trier of fact may base a credibility determination on the

6    demeanor, candor, or responsiveness of the applicant . . . ,

7    the consistency between the applicant’s or witness’s written

8    and oral statements . . . , the internal consistency of each

9    such statement, the consistency of such statements with other

10   evidence of record . . . , and any inaccuracies or falsehoods

11   in such statements, . . . or any other relevant factor.”             8

12   U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

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

14   determination unless . . . it is plain that no reasonable

15   fact-finder could make such an adverse credibility ruling.”

16   Xiu Xia Lin, 534 F.3d at 167.        Substantial evidence supports

17   the agency’s determination that Yang was not credible.

18        Yang testified that he left China in 2000 because the

19   Chinese authorities were looking for him because they had

20   learned that he planned to petition the government after the

21   demolition of his family’s home.          But Yang both omitted this

22   event from his written statement and inconsistently stated

23   that he left China for a better future because of his family’s
                                    4
1    difficult financial circumstances.             The IJ reasonably relied

2    on the inconsistency, which called into question why Yang

3    left China and whether there was any reason that he would be

4    on   the     Chinese    government’s     radar.      See    id.    at    166-67

5    (explaining that “an IJ may rely on any inconsistency or

6    omission”); Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir.

7    2009) (“Omissions that go to a heart of an applicant’s claim

8    can form the basis for an adverse credibility determination.”

9    (brackets and citation omitted)).

10          The agency was not required to accept Yang’s explanations

11   for the omission because they do not explain why his written

12   statement says he came to the United States for a better

13   future given his family’s finances.             See Majidi v. Gonzales,

14   430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more

15   than    offer   a    plausible    explanation      for    his    inconsistent

16   statements to secure relief; he must demonstrate that a

17   reasonable      fact-finder      would   be   compelled     to    credit     his

18   testimony.”         (internal     quotation       marks    and         citations

19   omitted)).

20          The    adverse     credibility     determination           is     further

21   supported by the IJ’s finding that Yang’s testimony lacked

22   detail, in that he was unable to elaborate on the articles he

23   wrote, and the IJ’s observations of his demeanor, to which we
                                   5
1    defer.   See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that,

2    in considering credibility, an IJ may rely on “demeanor,

3    candor, or responsiveness”); Li Hua Lin v. U.S. Dep’t of

4    Justice, 453 F.3d 99, 109 (2d Cir. 2006) (giving “particular

5    deference” to demeanor findings (internal quotation marks

6    omitted)).     Although Yang argues that his nervousness was

7    normal and the IJ’s demeanor finding was speculative, the IJ

8    reasonably     relied    on   the    fact    that,   despite    repeated

9    questioning, Yang could not describe the contents of his own

10   articles.    See Li Hua Lin, 453 F.3d at 109.

11       The agency also reasonably found that Yang failed to

12   rehabilitate     his    testimony     with    reliable   corroborating

13   evidence.    “An applicant’s failure to corroborate his or her

14   testimony may bear on credibility, because the absence of

15   corroboration    in     general     makes    an   applicant    unable   to

16   rehabilitate testimony that has already been called into

17   question.”    Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

18   2007)(per curiam).       Where an asylum applicant bases a claim

19   solely on activities in the United States, the applicant must

20   show that the Chinese government is aware or likely to become

21   aware of those activities.           Hongsheng Leng v. Mukasey, 528

22   F.3d 135, 138 (2d Cir. 2008)(per curiam).             As the IJ found,

23   Yang provided no evidence to corroborate his testimony that
                                  6
1    Chinese authorities told his parents that they were aware of

2    his prodemocracy activities in the United States.

3        Accordingly, substantial evidence supports the agency’s

4    adverse     credibility      determination.         See     8     U.S.C.

5    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-66.               The

6    adverse    credibility    determination    is   dispositive      because

7    withholding   of   removal    and   CAT   relief   relied   on   Yang’s

8    credibility and are based on the same factual predicate.            See

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

10   we do not reach the agency’s alternative burden-of-proof

11   finding.    See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As

12   a general rule courts and agencies are not required to make

13   findings on issues the decision of which is unnecessary to

14   the results they reach.”).

15       For the foregoing reasons, the petition for review is

16   DISMISSED in part and DENIED in part.

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




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