     15-4061
     Yang v. Sessions
                                                                                       BIA
                                                                                  Rohan, IJ
                                                                               A089 094 373
                             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   28th day of March, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DEBRA ANN LIVINGSTON,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHEN QIANG YANG,
14            Petitioner,
15
16                      v.                                           15-4061
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gerald Karikari, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Daniel
27                                       E. Goldman, Senior Litigation
28                                       Counsel; Matthew A. Spurlock, Trial
29                                       Attorney, Office of Immigration
30                                       Litigation, United States
31                                       Department of Justice, Washington,
32                                       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 Zhen Qiang Yang, a native and citizen of the

6    People’s Republic of China, seeks review of a November 18, 2015,

7    decision of the BIA, affirming a March 11, 2014, decision of

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

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).    In re Zhen Qiang Yang, No. A089 094

11   373 (B.I.A. Nov. 18, 2015), aff’g No. A089 094 373 (Immig. Ct.

12   N.Y. City Mar. 11, 2014).   We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14       Because the BIA affirmed the IJ’s decision without opinion,

15   we have reviewed “the IJ’s decision as the final agency

16   determination.”   Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d

17   Cir. 2008).    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).

20       For asylum applications like Yang’s, governed by the REAL

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

22   circumstances,” base a credibility finding on inconsistencies
                                    2
1    between an applicant’s and witness’s statements, “and any

2    inaccuracies or falsehoods in such statements, without regard

3    to whether an inconsistency, inaccuracy, or falsehood goes to

4    the heart of the applicant’s claim, or any other relevant

5    factor.”   8 U.S.C. § 1158(b)(1)(B)(iii).         “We defer . . . to

6    an IJ’s credibility determination unless, from the totality of

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

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

9    534 F.3d at 167.     “A petitioner must do more than offer a

10   ‘plausible’ explanation for his inconsistent statements to

11   secure   relief;   ‘he   must   demonstrate      that    a    reasonable

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

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

14   Yun Zhang v. INS, 386 F.3d 77, 76 (2d Cir. 2004)).            Substantial

15   evidence supports the adverse credibility determination.

16       The agency reasonably relied on inconsistencies concerning

17   Yang’s church attendance in the United States.               See 8 U.S.C.

18   § 1158(b)(1)(B)(iii).     Yang testified that he attends that

19   Evangelical   Mission    Church       in   Manhattan    and    submitted

20   photographs purporting to show his attendance at that church.

21   Pastor Yang and Pastor Lin, both of the Evangelical Mission

22   Church, were shown the photographs; neither recognized the
                                       3
1    subjects in the photographs.            When confronted with this

2    discrepancy, Yang confessed that he had taken some of the

3    photographs at his aunt’s church, not at the Evangelical Mission

4    Church as the text below each picture indicated.               The IJ

5    reasonably drew a negative inference from Yang’s explanation

6    of the above discrepancy—that his aunt told him all churches

7    were the same and instructed Yang to “just go to [the Queens]

8    church   and    take   some    pictures”   for   his   application—and

9    concluded that this suggested Yang “only attended church in

10   Queens to procure evidence to bolster his” application.            See

11   Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single

12   false document or a single instance of false testimony may (if

13   attributable to petitioner) infect the balance of the alien’s

14   uncorroborated or unauthenticated evidence.”).

15       Yang concedes that this discrepancy exists, but argues that

16   it does not affect his claim of past persecution in China.         He

17   is wrong.      This inconsistency concerned an issue central to

18   Yang’s asylum claim, that is, whether or not he is (or was) a

19   practicing Christian.         Thus, even alone, it provided

20   substantial evidence to support the adverse credibility

21   determination.      Cf. Xian Tuan Ye v. Dep’t of Homeland Sec., 446

22   F.3d 289, 295 (2d Cir. 2006); see also Siewe, 480 F.3d at 170.
                                         4
1    Nor was the agency compelled to accept his explanation that he

2    believed the Evangelical Mission Church (in Manhattan) and his

3    aunt’s church (in Queens) were the same: his explanation does

4    not resolve why the photographs of different structures are all

5    labeled “Evangelical Mission Church” or why he maintained that

6    he attended the Evangelical Mission Church until Pastor Yang

7    testified to the contrary.    See Majidi, 430 F.3d at 80.

8        Yang also generally challenges the adverse credibility

9    determination on the basis that the inconsistencies do not go

10   to the heart of his claim.   However, his argument is misplaced

11   for two reasons.   As discussed above, the inconsistencies are

12   material.    And he incorrectly relies on pre-REAL ID Act

13   precedent.   Under the REAL ID Act, which governs Yang’s case,

14   “an IJ may rely on any inconsistency or omission in making an

15   adverse credibility determination,” where,      as here, “the

16   ‘totality of the circumstances’ establishes that an asylum

17   applicant is not credible.”     Xiu Xia Lin, 534 F.3d at 167

18   (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).

19       We note that the IJ made misstatements regarding Yang’s

20   efforts to procure church witnesses to testify on his behalf.

21   The IJ found an inconsistency between Yang’s December 2011

22   testimony that he had “spoke[n] to Pastor Lin” at the
                                    5
1    Evangelical Mission Church about testifying, and Pastor Lin’s

2    testimony in June 2012 that Yang had not been to the Evangelical

3    Mission Church since June 2011.    But Yang mentioned two

4    different Pastor Lins and the record is unclear which pastor

5    he initially asked to testify.     The IJ also found an

6    inconsistency between Yang’s December 2011 testimony that

7    Pastor Yang refused to testify or submit a letter, and Pastor

8    Yang’s June 2012 testimony “that he had not seen [Yang] since

9    [his] baptism in 2008”; the transcript of the December 2011

10   hearing makes no mention of Pastor Yang or of this alleged

11   conversation.   What is clear despite these errors is that Yang

12   did not know where the Evangelical Mission Church was located

13   when he said, in December 2011, that he asked the pastors to

14   testify.   Accordingly, despite the IJ’s misstatements, the

15   ultimate conclusion that Yang could not have approached anyone

16   at the Manhattan church in the month before the December 2011

17   hearing, is supported by the record.    We conclude, moreover,

18   not only that the totality of the circumstances supports the

19   adverse credibility determination, but that remand to correct

20   the minor errors would be futile.     See Lianping Li v. Lynch,

21   839 F.3d 144, 149 (2d Cir. 2016).


                                    6
1         The inconsistencies, which call into question whether Yang

2    is a practicing Christian and thereby undermine his credibility

3    as to both past harm on that basis and his alleged fear of future

4    harm, are dispositive of asylum, withholding of removal, and

5    CAT relief because all three forms of relief are based on the

6    same factual predicate.    Paul v. Gonzales, 444 F.3d 148, 156-57

7    (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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