         13-4
         Jiang v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 939 375
                               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 18th day of February, two thousand sixteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       WEI HUA JIANG,
14                Petitioner,
15
16                            v.                                13-4
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Gary J. Yerman, Yerman & Associates,
24                                      LLC, New York, New York.
25
26


                          *
                 Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Loretta E. Lynch is automatically
        substituted for former Attorney General Eric H. Holder, Jr.
 1   FOR RESPONDENT:        Stuart F. Delery, Assistant Attorney
 2                          General; Leslie McKay, Assistant
 3                          Director; Jessica A. Dawgert, Trial
 4                          Attorney, Office of Immigration
 5                          Litigation, United States Department
 6                          of Justice, Washington, D.C.
 7
 8       UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DENIED.

12       Petitioner Wei Hua Jiang, a native and citizen of

13   China, seeks review of a December 5, 2012, decision of the

14   BIA affirming a July 14, 2011, decision of Immigration Judge

15   (“IJ”) Aviva L. Poczter, denying Jiang’s application for

16   asylum, withholding of removal and relief under the

17   Convention Against Torture (“CAT”).   In re Wei Hua Jiang,

18   No. A200 939 375 (B.I.A. Dec. 5, 2012), aff’g No. A200 939

19   375 (Immig. Ct. N.Y.C. July 14, 2011).   We assume the

20   parties’ familiarity with the underlying facts and

21   procedural history in this case.

22       Under the circumstances of this case, where the BIA

23   affirmed the IJ without opinion we review the IJ’s decision.

24   See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).

25   The applicable standards of review are well-established.

26

                                  2
 1   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534

 2   F.3d 162, 165-66 (2d Cir. 2008).

 3       For applications like this one, governed by the REAL ID

 4   Act of 2005, the agency may base a credibility finding on an

 5   asylum applicant’s demeanor, the plausibility of his

 6   account, and inconsistencies in his statements, without

 7   regard to whether they go “to the heart of the applicant’s

 8   claim.”   8 U.S.C. § 1158(b)(1)(B)(iii).   Analyzed under

 9   these standards, the agency’s adverse credibility

10   determination is supported by substantial evidence.

11       In finding Jiang incredible, the IJ reasonably relied

12   on his inconsistent statements about the date of his arrest.

13   This inconsistency was particularly significant because the

14   arrest was Jiang’s sole allegation of past persecution.

15   Given that Jiang did not arrive in the United States until

16   August 2010, a reasonable fact-finder would not be compelled

17   to credit his contention that his testimony that he was

18   arrested in March 2010 was a reference to his immigration

19   detention.   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

20   Cir. 2005) (holding that the agency need not credit an

21   applicant’s explanations unless those explanations would

22   compel a reasonable fact-finder to do so).


                                   3
 1       In light of its credibility findings, the agency

 2   reasonably noted that Jiang’s failure to provide

 3   corroborative evidence further undermined his credibility.

 4   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

 5   The letter from Jiang’s pastor did not provide adequate

 6   corroboration because it stated that he had attended church

 7   since April 2011, while he had testified that he began

 8   attending church in September 2010.   Further, as the letter

 9   was dated June 2011, the agency reasonably declined to

10   credit Jiang’s explanation that the letter was written in

11   April 2011.   See Majidi, 430 F.3d at 80-81.

12       Although an IJ may err in basing an adverse credibility

13   finding on the absence of corroborating evidence that was

14   not reasonably available, see Li Zu Guan v. I.N.S., 453 F.3d

15   129, 141 (2d Cir. 2006), here, Jiang has not provided a

16   compelling explanation for his failure to provide any other

17   evidence supporting his claim.

18       Accordingly, given that the inconsistencies relate to

19   the sole allegation of past harm and to whether Jiang is a

20   practicing Christian, as well as the lack of corroborating

21   evidence, the agency’s adverse credibility determination is

22   supported by substantial evidence, see 8 U.S.C.


                                   4
 1   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167, and it

 2   is not necessary for us to consider the IJ’s alternative

 3   finding that Jiang did not meet his burden of proof.

 4       As the agency reasonably found that Jiang failed to

 5   establish eligibility for asylum on credibility grounds, the

 6   agency did not err in denying withholding of removal and

 7   relief under the CAT, as these claims shared the same

 8   factual predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-

 9   57 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,

10   426 F.3d 520, 523 (2d Cir. 2005).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DENIED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




                                    5
