     15-3890
     Jiang v. Lynch
                                                                                       BIA
                                                                                 Loprest, IJ
                                                                               A205 245 787
                           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   29th day of November, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            ROBERT D. SACK,
10            PETER W. HALL,
11                 Circuit Judges.
12   _____________________________________
13
14   JIAN JIANG,
15            Petitioner,
16
17                    v.                                             15-3890
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Ai Tong, New York, N.Y.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Greg D.
28                                       Mack, Senior Litigation Counsel;
29                                       Lisa Morinelli, Trial Attorney;
30                                       Office of Immigration Litigation,
31                                       United States Department of Justice,
32                                       Washington, D.C.
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 is

4    DENIED.

5        Petitioner Jian Jiang, a native and citizen of the People’s

6    Republic of China, seeks review of a November 23, 2015, decision

7    of the BIA affirming a June 12, 2014, decision of an Immigration

8    Judge     (“IJ”)   denying   Jiang’s    application   for   asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).     In re Jian Jiang, No. A205 245 787 (B.I.A.

11   Nov. 23, 2015), aff’g No. A205 245 787 (Immig. Ct. N.Y. City

12   June 12, 2014).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed both

15   the IJ’s and BIA’s decisions.        Yun-Zui Guan v. Gonzales, 432

16   F.3d 391, 394 (2d Cir. 2005).          The applicable standards of

17   review are well established.    See 8 U.S.C. § 1252(b)(4)(B); Xiu

18   Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

19       For asylum applications like Jiang’s, governed by the REAL

20   ID Act, the agency may, “[c]onsidering the totality of the

21   circumstances,” base a negative credibility finding on an

22   asylum applicant’s demeanor and an inconsistency or omission

                                      2
1    between the applicant’s statements and other record evidence.

2    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64,

3    166 n.3.   “We defer . . . to an IJ’s credibility determination

4    unless, from the totality of the circumstances, it is plain that

5    no reasonable fact-finder could make such an adverse

6    credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.    In the

7    present case, substantial evidence supports the adverse

8    credibility determination.

9        The agency reasonably based its credibility finding on

10   Jiang’s omission of his medical treatment for injuries he

11   sustained during his detention.    See 8 U.S.C.

12   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67 & n.3 (“An

13   inconsistency and an omission are . . . functionally

14   equivalent” for credibility purposes).    Jiang claimed for the

15   first time on cross examination that he received medical

16   treatment following his release from detention, stating that

17   his mother twice took him to a local clinic to have his injuries

18   treated.   Neither his direct testimony, his asylum

19   application, nor his mother’s supporting letter mention this

20   treatment.   The agency was not compelled to accept Jiang’s

21   explanation that he did not realize he needed to include details

22   of what happened after his release from detention, especially

                                    3
1    because his application addressed post-detention issues, such

2    as the requirement that he report to the police after his

3    release.   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

4    (“A petitioner ‘must do more than offer a ”plausible”

5    explanation for his inconsistent statements to secure relief;

6    “he must demonstrate that a reasonable fact-finder would be

7    compelled to credit his testimony.”’” (quoting Zhou Yun Zhang

8    v. U.S. INS, 386 F.3d 66,76 (2d Cir. 2004))).

9        The adverse credibility determination is further supported

10   by the IJ’s conclusion that Jiang’s unresponsive testimony

11   reflected a lack of credibility.    8 U.S.C.

12   § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of Justice, 426

13   F.3d 104, 113 (2d Cir. 2005) (deferring to demeanor findings

14   “in recognition of the fact that the IJ’s ability to observe

15   the witness’s demeanor places [him] in the best position to

16   evaluate whether apparent problems in the witness’s testimony

17   suggest a lack of credibility or, rather, can be attributed to

18   an innocent cause such as difficulty understanding the

19   question.”).   The record reflects that Jiang took an unusually

20   long pause when asked to explain the omission of his medical

21   treatment from his asylum application, and another pause after

22   the IJ prompted him to answer.     His testimony regarding both

                                    4
1    his experiences in China and his practice of Christianity in

2    the United States was brief and lacked detail.         The IJ did not

3    rely solely on a general finding of testimonial vagueness, as

4    Jiang argues, but rather took Jiang’s brief answers into account

5    along with the rest of the evidence in finding that he lacked

6    credibility.     Cf. Shunfu Li v. Mukasey, 529 F.3d 141, 147-48

7    (2d Cir. 2008).

8           The   agency   also   reasonably   concluded    that     Jiang’s

9    corroborating evidence was insufficient to rehabilitate his

10   credibility.     See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

11   Cir.    2007).    The   agency   determined   that    Jiang’s    church

12   certificate and the letters from his mother and girlfriend were

13   entitled to diminished weight because the authors of these

14   documents were unavailable for cross examination and Jiang’s

15   mother and girlfriend were interested parties.          “We defer to

16   the agency’s determination of the weight afforded to an alien’s

17   documentary evidence.”       Y.C. v. Holder, 741 F.3d 324, 334 (2d

18   Cir. 2013).      Additionally, Jiang’s mother’s letter did not

19   corroborate his testimony because it omitted the medical

20   treatment despite noting Jiang’s injuries.

21          Given the demeanor finding, the omission regarding Jiang’s

22   medical treatment, and the lack of corroborating evidence to

                                       5
1    rehabilitate his claim of past persecution, the totality of the

2    circumstances supports the adverse credibility ruling.         8

3    U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

4    Because Jiang’s claims were all based on the same factual

5    predicate,    the   adverse   credibility   determination      is

6    dispositive of asylum, withholding of removal, and CAT relief.

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

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




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