     15-1805
     Dong v. Yates
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A072 475 138

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                           AMENDED 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   23rd day of January , two thousand seventeen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            SUSAN L. CARNEY,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JIE-TAN DONG, AKA EDGAR GONZALEZ,
14            Petitioner,
15
16                   v.                                              15-1805
17                                                                   NAC
18   SALLY Q. YATES, ACTING UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent*.
21   _____________________________________
22
23
24   FOR PETITIONER:                     WaiSim M. Cheung, New York, NY.
25
26

     * Pursuantto Federal Rule of Appellate Procedure 43(c)(2),
     Acting Attorney General Sally Q. Yates is automatically
     substituted for former Attorney General Loretta E. Lynch as
     Respondent.
 1   FOR RESPONDENT:             Benjamin C. Mizer, Principal Deputy
 2                               Assistant Attorney General; Stephen
 3                               J. Flynn, Assistant Director; Lynda
 4                               A.    Do,   Attorney,     Office    of
 5                               Immigration    Litigation,     United
 6                               States    Department    of   Justice,
 7                               Washington, DC.
 8        UPON DUE CONSIDERATION of this petition for review of a Board

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

10   ADJUDGED, AND DECREED that the petition for review is DENIED.

11        Petitioner Jie-Tan Dong, a native and citizen of the

12   People’s Republic of China, seeks review of a May 8, 2015 decision

13   of the BIA, affirming a March 20, 2013 decision of an Immigration

14   Judge (“IJ”) denying asylum, withholding of removal, and relief

15   under the Convention Against Torture (“CAT”).      In re Jie-Tan

16   Dong, No. A072 475 138 (B.I.A. May 8, 2015), aff’g No. A072 475

17   138 (Immig. Ct. N.Y. City Mar. 20, 2013). We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20        Under the circumstances of this case, we review both the

21   BIA’s and IJ’s decisions “for the sake of completeness.”

22   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

23   2006). The applicable standards of review are well established.

24   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

25   165-66 (2d Cir. 2008).

26

                                     2
1    Adverse Credibility Determination

2        The     agency   may,   “[c]onsidering      the   totality      of   the

3    circumstances,”      base   a   credibility     finding   on   an   asylum

4    applicant’s    “demeanor,       candor,    or   responsiveness,”         the

5    plausibility    of   his    account,    and   inconsistencies       in   his

6    statements and other record evidence “without regard to whether”

7    those inconsistencies go “to the heart of the applicant’s claim.”

8    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

9    “We defer . . . to an IJ’s credibility determination unless .

10   . . it is plain that no reasonable fact-finder could make such

11   an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

12   “A petitioner must do more than offer a plausible explanation

13   for his inconsistent statements to secure relief; he must

14   demonstrate that a reasonable fact-finder would be compelled

15   to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77, 80

16   (2d Cir. 2005) (emphasis in original) (internal quotation marks

17   omitted).

18        Substantial evidence supports the agency’s determination

19   that Dong was not credible.             Dong conceded that his 1993

20   application was false and incorporated that application into

21   his 2011 application. See Siewe v. Gonzales, 480 F.3d 160, 170

22   (2d Cir. 2007) (“[A] single false document or a single instance


                                         3
1    of false testimony may (if attributable to the petitioner) infect

2    the balance of the alien’s uncorroborated or unauthenticated

3    evidence.”).   Additionally, Dong admitted to using a false

4    Venezuelan passport to enter the United States in 1993. We have

5    held that “[t]he presentation of fraudulent documents that were

6    created to escape persecution may actually tend to support an

7    alien’s application” and generally may not be used to undermine

8    credibility. Id. at 170 (emphasis omitted). That is not Dong’s

9    situation, however, because he disavowed his 1993 asylum claim

10   and was therefore not fleeing persecution.

11       Further, the agency reasonably relied on inconsistencies

12   between Dong’s testimony and the testimony and statement from

13   the witness he called to corroborate his religious practice in

14   the United States. 8 U.S.C. § 1158(b)(1)(B)(iii). Dong and the

15   witness were inconsistent as to how long they had known each

16   other and whether they were acquainted when Dong was baptized.

17   The agency was not required to accept Dong’s explanation, which

18   did not fully explain the discrepancies. See Majidi, 430 F.3d

19   at 80.

20       Given Dong’s incorporation of his admittedly false 1993

21   asylum application into his 2011 application, his use of a false

22   passport, and these inconsistencies related to the religious


                                    4
1    practice that formed the basis of his asylum claim, the agency’s

2    credibility determination is supported by substantial evidence.

3    See Xiu Xia Lin, 534 F.3d at 165-66.            That determination is

4    dispositive of his claims for asylum, withholding of removal,

5    and CAT relief because all three claims rest on the same factual

6    predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

7    2006). Accordingly, we need not reach the agency’s alternative

8    burden finding. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

9    (“As a general rule courts and agencies are not required to make

10   findings on issues the decision of which is unnecessary to the

11   results they reach.”).

12   Frivolous Asylum Application

13        If the agency determines that an alien has knowingly filed

14   a frivolous application for asylum, the alien is permanently

15   ineligible for any immigration benefits, save withholding of

16   removal and CAT relief.        8 U.S.C. § 1158(d)(6); 8 C.F.R.

17   § 1208.20. In making such a finding, an IJ must (1) give the

18   alien   notice   of   the   consequences   of    filing   a   frivolous

19   application; (2) make a specific finding that the alien knowingly

20   filed a frivolous application; (3) identify sufficient evidence

21   in the record to support the finding that a “material element[]”

22   of the asylum application was “deliberately fabricated”; and


                                       5
1    (4) allow the alien “sufficient opportunity to account for any

2    discrepancies or implausible aspects of the claim.” 8 C.F.R.

3    § 1208.20; Matter of Y-L, 24 I. & N. Dec. 151, 155 (BIA 2007).

4        Dong argues that the agency’s finding that he filed a

5    frivolous application violated due process because he withdrew

6    his 1993 application in 1998 and disavowed the application at

7    his hearing before he received the frivolous finding warning

8    and before he signed his 2011 application under oath. He argues

9    that this chronology proves that his disavowal of his 1993

10   application was also “meant to retract and recant the . . .

11   one-line reference to the 1993 application” that appeared in

12   his 2011 application and that the reference was merely a mistake.

13   Dong stresses that he did not submit the 1993 application as

14   evidence, but that it “appears to be the IJ’s own sua sponte

15   incorporation.”

16        As an initial matter, the 1993 application was admissible

17   because it was reliable evidence of his actions. See Felzcerek

18   v. INS, 75 F.3d 112, 115 (2d Cir. 1996) (“The due process test

19   for admissibility of evidence in a deportation hearing is whether

20   the evidence is probative and whether its use is fundamentally

21   fair. . . . [F]airness is closely related to the reliability

22   and trustworthiness of the evidence.”). Dong did not dispute


                                    6
1    that the application was the one that he filed in 1993 and

2    withdrew in 1998.

3        Dong’s argument that the timing of the frivolous finding

4    warning violated due process is belied by the record. The IJ

5    acknowledged that Dong filed (and withdrew) his 1993 application

6    before Dong received any frivolous filing warnings and concluded

7    that it could not make a frivolous filing finding regarding that

8    application.   The IJ gave Dong the frivolous filing warning

9    regarding Dong’s 2011 application, however, and Dong swore

10   thereafter “that the contents . . . and each of the supporting

11   documents that [he] submitted are true and correct to the best

12   of [his] knowledge.” Dong then signed the application, which

13   incorporated the 1993 application as evidence of his past harm.

14   Dong’s statement that he was “not going to pursue [the 1993]

15   application” did not constitute an explicit renunciation of its

16   incorporation into the 2011 application and he failed to modify

17   his 2011 application either before or after he received the

18   frivolous filing warning.

19       Dong’s own testimony further undermines his claim that he

20   recanted the 2011 application’s incorporation of the 1993

21   application or that the incorporation was merely a mistake. At

22   the hearing, when asked why the Chinese government would


                                    7
1    persecute him, his initial response was to refer to his

2    “student[] movement activities,” mentioned in his 1993 asylum

3    application. This reference to his family’s alleged opposition

4    to the Chinese government’s reaction to the student-led protests

5    at Tiananmen Square supports the IJ’s conclusion that Dong

6    intended to incorporate his fabricated 1993 asylum claim into

7    his 2011 application. It was only after a brief recess during

8    the hearing that Dong testified, in conformity with his 2011

9    application, that he feared religious persecution.         Given

10   Dong’s subsequent concession that his 1993 application was a

11   complete fabrication, his reliance on it in his 2011 application

12   and at the hearing supports the finding that he filed a frivolous

13   application.

14       For the foregoing reasons, the petition for review is

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

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

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

18   is DISMISSED as moot. Any pending request for oral argument in

19   this petition is DENIED in accordance with Federal Rule of

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

21   34.1(b).

22                                FOR THE COURT:
23                                Catherine O’Hagan Wolfe, Clerk

                                    8
