         11-2802                                                                       BIA
         Jiang v. Holder                                                          Weisel, IJ
                                                                               A087 441 504



                            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 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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of June, two thousand twelve.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       MING FEI JIANG,
14                Petitioner,
15
16                         v.                                   11-2802
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Lee Ratner, Law Offices of Michael
24                                     Brown, New York, N.Y.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Anthony W. Norwood, Senior
28                                     Litigation Counsel; Colin J. Tucker,
29                                     Trial Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          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

 8   is DENIED.

 9       Petitioner Ming Fei Jiang, a native and citizen of

10   China, seeks review of a June 27, 2011, order of the BIA,

11   affirming a January 26, 2010, decision of Immigration Judge

12   (“IJ”) Robert Weisel, denying his application for asylum,

13   withholding of removal, and relief under the Convention

14   Against Torture (“CAT”).   In re Ming Fei Jiang, No. A087 441

15   504 (B.I.A. June 27, 2011), aff’g No. A087 441 504 (Immig.

16   Ct. N.Y. City Jan. 26, 2010).       We assume the parties’

17   familiarity with the underlying facts and procedural history

18   in this case.

19       Because the Board’s reasoning “closely tracks” the

20   IJ’s, we have reviewed both the IJ’s and the BIA’s opinions

21   “for the sake of completeness.”       Zaman v. Mukasey, 514 F.3d

22   233, 237 (2d Cir. 2008).   The agency’s findings of fact,

23   including credibility determinations, are reviewed under the

24   substantial evidence standard, Yanqin Weng v. Holder, 562

25   F.3d 510, 513 (2d Cir. 2009), and “are conclusive unless any

                                     2
 1   reasonable adjudicator would be compelled to conclude to the

 2   contrary.”    8 U.S.C. § 1252(b)(4)(B).   Because this

 3   application is governed by the REAL ID Act of 2005, the

 4   agency may, considering the totality of the circumstances,

 5   base a credibility finding on an asylum applicant’s

 6   demeanor, the plausibility of his account, and

 7   inconsistencies in his statements, without regard to whether

 8   they go “to the heart of the applicant’s claim.”     8 U.S.C.

 9   § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,

10   265 (B.I.A. 2007).

11       Analyzed under the REAL ID Act, the agency’s adverse

12   credibility determination is supported by substantial

13   evidence.    In finding Jiang not credible, the agency

14   reasonably relied on the inconsistency between his testimony

15   and asylum application concerning his knowledge of Falun

16   Gong while in China.    See 8 U.S.C. § 1158(b)(1)(B)(iii).      As

17   the agency noted, Jiang’s testimony that he had little, if

18   any, understanding of Falun Gong while in China contradicted

19   statements in his asylum application.     In his asylum

20   application, he stated that while in China, he had

21   publically lectured individuals about what Falun Gong is and

22   the truth about why the Chinese government suppresses Falun


                                    3
 1   Gong; he also stated that he had only begun to support Falun

 2   Gong after he understood what Falun Gong was.   Although

 3   Jiang takes issue with the agency’s interpretation of his

 4   asylum application as reflecting a deeper understanding of

 5   Falun Gong than his subsequent testimony indicated, it is

 6   not our role to determine which possible inference is the

 7   most plausible.   See Siewe v. Gonzales, 480 F.3d 160, 168

 8   (2d Cir. 2007) (under the substantial evidence standard,

 9   “support for a contrary inference,” even if “more plausible

10   or more natural,” is not error).   Where, as here, the

11   agency’s inference “is tethered to the evidentiary record,

12   we will accord deference to the finding.”   Id. at 169.

13       Finally, error, if any, in the Board’s one-sentence

14   statement that the IJ had relied on the petitioner’s

15   demeanor in its adverse credibility determination is

16   harmless given the Board’s overwhelming reliance on Jiang’s

17   inconsistent statements.   Jin Jin Long v. Holder, 620 F.3d

18   162, 165 n.4 (2d Cir. 2010) (applying harmless error

19   standard); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

20   315, 339 (2d Cir. 2006) (noting that remand is futile when

21   this Court “can ‘confidently predict’ that the agency would

22   reach the same decision absent [any] errors that were made”)


                                   4
1   (quoting Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,

2   406 (2d Cir. 2005)).

3       For the foregoing reasons, the petition for review is

4   DENIED.   As we have completed our review, petitioner’s

5   motion for stay of removal is DENIED as moot.

6

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe, Clerk




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