    16-1982
    Wang v. Sessions
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A087 766 028
                            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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    24th day of January, two thousand eighteen.

    PRESENT:
             DENNIS JACOBS,
             PETER W. HALL,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    FENG YAN WANG, AKA TENGXIANG ZHENG,
             Petitioner,

                       v.                                            16-1982
                                                                     NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Jay Ho Lee, New York, NY.

    FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
                                         Attorney General; Stephen J. Flynn,
                                         Assistant Director; Lynda A. Do,
                                         Attorney; Robert Michael Stalzer,
                                         Trial Attorney, Office of
                                         Immigration Litigation, United
                                         States Department of Justice,
                                         Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Feng Yan Wang, a native and citizen of the

People’s Republic of China, seeks review of a June 13, 2016,

decision of the BIA affirming an August 20, 2015, decision of

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

asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”).   In re Feng Yan Wang, No. A087 766 028

(B.I.A. June 13, 2016), aff’g No. A087 766 028 (Immig. Ct. N.Y.

City Aug. 20, 2015).   We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

    In lieu of filing a brief, the Government moves for summary

denial of Wang’s petition for review.        Summary denial is

warranted only if a petition is frivolous, Pillay v. INS, 45

F.3d 14, 17 (2d Cir. 1995), and Wang has filed her merits brief.

Accordingly, we treat the Government’s motion as a response to

that brief, and deny the petition.

    Under the circumstances of this case, we have reviewed the

IJ’s decision as supplemented and modified by the BIA.   See Wala
                               2
v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007); Xue Hong Yang v.

U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).         We

review the adverse credibility determination for substantial

evidence.   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,

534 F.3d 162, 165-66 (2d Cir. 2008).      The agency may,

“[c]onsidering the totality of the circumstances,” base an

adverse credibility determination on discrepancies between an

applicant’s oral and written statements, between an applicant’s

and her witness’s testimony, or between an applicant’s

testimony and other record evidence.      8 U.S.C.

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

applicant’s failure to corroborate . . . her testimony may bear

on credibility, because the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has

already been called into question.”     Biao Yang v. Gonzales, 496

F.3d 268, 273 (2d Cir. 2007).       “We defer . . . to an IJ’s

credibility determination unless . . . it is plain that no

reasonable fact-finder could make such an adverse credibility

ruling.”    Xiu Xia Lin, 534 F.3d at 167.

    The BIA emphasized two discrepancies that, along with the

lack of reliable corroborating evidence, provide substantial
                                3
evidence for the adverse credibility ruling.   First, the agency

reasonably relied on Wang’s conflicting descriptions of her

mistreatment in detention.   See 8 U.S.C. § 1158(b)(1)(B)(iii).

In her 2010 credible fear interview with an asylum officer, Wang

stated that officers pulled her hair and slapped her face.   When

asked if anything else happened while she was detained, Wang

said no.   However, Wang’s asylum application and testimony

described multiple severe beatings during her three days in

detention, resulting in bruises all over her body.     While it

is reasonable to assume that an alien’s credible fear interview

will be less detailed than her asylum application and hearing

testimony, see Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir.

2009), Wang’s credible fear interview omitted significant

details regarding her beatings, despite her being asked to add

to her statement, and presented materially different accounts

of her mistreatment, see Ramsameachire v. Ashcroft, 357 F.3d

169, 180-81 (2d Cir. 2004) (holding that where initial statement

and later testimony “present materially different accounts of

. . . persecution . . .   the inconsistencies may render the

alien’s testimony incredible.”).    The IJ reasonably relied on

Wang’s omission from her credible fear interview of any
                               4
description of the severe harm she claims to have suffered in

her asylum application and later testimony.      See Xiu Xia Lin,

534 F.3d at 166 n.3 (“An inconsistency and an omission

are . . . functionally equivalent.”).

    Wang’s argument that the record of the credible fear

interview was not reliable is unexhausted because Wang did not

object to the admission of the credible fear record or raise

any concerns about its reliability before the IJ or the BIA.

Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (requiring

petitioner to raise issues to the BIA in order to preserve them

for judicial review).

    The agency also reasonably relied on Wang’s varying

descriptions of what she was doing when she was arrested.      At

her credible fear interview, Wang said that she and the others

had just started reciting the Lord’s Prayer when the police

arrived.   However, her application stated that they were

reading the Bible when the police arrived.    At the hearing, Wang

initially testified that the police arrived during a prayer;

but on cross examination, she testified that they had not yet

started praying and were reading the Bible.    Wang’s explanation

that the prayer and reading were simultaneous does not account
                               5
for her testimony that the group had not yet started praying

when the police arrived.   See Majidi v. Gonzales, 430 F.3d 77,

80-81 (2d Cir. 2005) (“A petitioner must do more than offer a

plausible explanation for [her] inconsistent statements to

secure relief; [s]he must demonstrate that a reasonable

fact-finder would be compelled to credit his testimony.”

(internal quotation marks omitted)).     In addition, Wang’s

story differed in another aspect: Wang testified that she

learned the prayer when she read it in the Bible at that meeting;

but at her credible fear interview, she said she had not read

the Bible.

    These discrepancies combine to provide substantial support

for the determination that Wang is not credible because they

call into question both whether she attended an underground

church and whether she was mistreated in detention.      Xiu Xia

Lin, 534 F.3d 166-67 & n.3; Xian Tuan Ye v. Dep’t of Homeland

Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that a single

material inconsistency relating to the persecution from which

an applicant sought asylum provided substantial evidence for

an adverse credibility determination).


                               6
    The agency reasonably concluded that Wang’s corroborating

evidence did not rehabilitate her credibility.    Biao Yang, 496

F.3d at 273.    The agency was not required to credit the letter

from Wang’s church, as the author did not appear for cross

examination and the letter suggested that Wang attended the

church during a year that she lived outside of New York.    Xiao

Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

2006) (weight afforded to evidence “lies largely within the

discretion of the IJ” (internal quotation marks and alteration

omitted)).     Wang’s husband’s testimony added inconsistency

regarding the frequency of Wang’s church attendance, and the

agency reasonably gave diminished weight to the letters from

Wang’s aunt and friend in China because they were authored by

witnesses not available for cross examination.    Y.C. v. Holder,

741 F.3d 324, 334 (2d Cir. 2013).

    Given the discrepancies relating to Wang’s church

activities and mistreatment in China, as well as her lack of

rehabilitative corroborating evidence, the totality of the

circumstances supports the agency’s adverse credibility

determination.    Xiu Xia Lin, 534 F.3d at 166-67; Xian Tuan Ye,

446 F.3d at 295-96; Biao Yang, 496 F.3d at 273.   Because Wang’s
                                7
claims were all based on the same factual predicate, the adverse

credibility determination is dispositive of asylum,

withholding of removal, and CAT relief.   Paul v. Gonzales, 444

F.3d 148, 156-57 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the Government’s

motion for summary denial is DENIED.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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