     14-1920
     Deng v. Lynch
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A200 924 585


                          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   17th day of September, two thousand fifteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            SUSAN L. CARNEY,
10            CHRISTOPHER F. DRONEY,
11                 Circuit Judges.
12   _____________________________________
13
14   DI DENG,
15                   Petitioner,
16
17                   v.                                        14-1920
18                                                             NAC
19
20   LORETTA E. LYNCH, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                 Gary J. Yerman, Yerman & Associates,
26                                   LLC, New York, New York.
27
28   FOR RESPONDENT:                 Benjamin C. Mizer, Acting Assistant
29                                   Attorney General; Blair O’Connor,
30                                   Assistant Director; Timothy Bo
1                                Stanton, Trial Attorney, Office of
2                                Immigration Litigation, United States
3                                Department of Justice, Washington D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

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

8    DENIED.

9        Di Deng, a native and citizen of China, seeks review of a

10   May 21, 2014 decision of the BIA affirming the September 30,

11   2011 decision of an Immigration Judge (“IJ”), which denied his

12   application for asylum, withholding of removal, and relief

13   pursuant to the Convention Against Torture (“CAT”).        In re Di

14   Deng, No. A200 924 585 (B.I.A. May 21, 2014), aff’g No. A200

15   924 585 (Immig. Ct. N.Y.C. Sept. 30, 2011).          We assume the

16   parties’ familiarity with the underlying facts and procedural

17   history in this case.

18       We have reviewed the decisions of both the IJ and the BIA

19   “for the sake of completeness.”       Wangchuck v. Dep’t of Homeland

20   Sec., 448 F.3d 524, 528 (2d Cir. 2006).             The applicable

21   standards     of   review   are   well    established.     8 U.S.C.

22   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

23   Cir. 2009).

24       For asylum applications that, like Deng’s, are governed by

25   the REAL ID Act of 2005, the agency may, “[c]onsidering the
                                       2
1    totality    of    the    circumstances,”      base   a   credibility

2    determination on inconsistencies in an asylum applicant’s

3    statements and other record evidence, “without regard to

4    whether” they go “to the heart of the applicant’s claim.”         8

5    U.S.C. § 1158(b)(1)(B)(iii).          “We defer . . . to an IJ’s

6    credibility determination unless, from the totality of the

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

8    make such an adverse credibility ruling.”            Xiu Xia Lin v.

9    Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).          In

10   Deng’s case, substantial evidence supports the agency’s adverse

11   credibility determination.

12       First, the agency reasonably afforded less weight to Deng’s

13   testimony regarding his detention because it was vague in

14   comparison to other testimony.        See Shunfu Li v. Mukasey, 529

15   F.3d 141, 147 (2d Cir. 2008).           The vagueness finding was

16   bolstered by numerous inconsistencies in the record.

17       Second,      the    agency   reasonably     relied   on   Deng’s

18   inconsistent statements regarding whether he had problems with

19   the police after his arrest.      Deng initially testified that,

20   following his arrest, he had no “further problems” with the

21   police.    However, he later testified that he went into hiding

22   because the police continued to look for him.         The agency was

23   not required to credit his explanation that he meant only that
                                       3
1    the police had not beaten him again, because the open-ended

2    question whether he had “any further problems” with police

3    encompassed more than beatings.          See Majidi v. Gonzales, 430

4    F.3d 77, 80-81 (2d Cir. 2005).

5        Third,   the   agency   also       reasonably   considered   Deng’s

6    failure to mention in his asylum application and personal

7    statement that he went into hiding following his arrest.           See

8    Xiu Xia Lin, 534 F.3d at 166 n.3.           Although Deng’s personal

9    statement and a letter from his parents mentioned that Deng was

10   often “harassed” by police following his arrest, neither stated

11   that he went into hiding for any period of time.           The agency

12   was not compelled to credit Deng’s explanation for the omission—

13   that he “forgot” to mention that he went into hiding.               See

14   Majidi, 430 F.3d at 80-81.

15       Having questioned Deng’s credibility, the agency

16   reasonably determined that his corroborating evidence did not

17   rehabilitate his claim or independently satisfy his burden of

18   proof.   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

19   2007).

20       Given the inconsistencies and lack of corroboration, the

21   totality of the circumstances supports the agency’s adverse

22   credibility determination.     See Xiu Xia Lin, 534 F.3d at 167.

23   That determination is dispositive of his claims for asylum,
                                        4
1    withholding of removal, and CAT relief as they rest on the same

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

3    Cir. 2006).

4        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk




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