     16-2644
     Wang v. Sessions
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A205 270 818
                             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 the29th
 4   29th day of November, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            GERARD E. LYNCH,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   ZONG YI WANG,
14            Petitioner,
15
16                      v.                                           16-2644
17                                                                   NAC
18   JEFFERSON B. SESSIONS, III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Marta Bachynska, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Anthony C. Payne,
27                                       Assistant Director; Kathleen Kelly
28                                       Volkert, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
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 Zong Yi Wang, a native and citizen of the

6    People’s Republic of China, seeks review of a July 6, 2016,

7    decision of the BIA affirming a June 17, 2015, decision of an

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

 9   withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).   In re Zong Yi Wang, No. A 205 270 818 (B.I.A.

11   July 6, 2016), aff’g No. A 205 270 818 (Immig. Ct. N.Y. City June

12   17, 2015).   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 “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).    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       “Considering the totality of the circumstances, and all

21   relevant factors, [an IJ] may base a credibility determination

22   on the demeanor, candor, or responsiveness of the applicant
                                    2
1    . . ., the consistency between the applicant’s . . . written

2    and oral statements . . . , the internal consistency of each

3    such statement, [and] the consistency of such statements with

4    other evidence of record . . . without regard to whether an

5    inconsistency, inaccuracy, or falsehood goes to the heart of

6    the applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii); see

7    also Xiu Xia Lin, 534 F.3d at 163-64, 167.   “We defer . . . to

8    an IJ’s credibility determination unless . . . it is plain that

9    no reasonable fact-finder could make such an adverse

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

11   Substantial evidence supports the agency’s determination that

12   Wang was not credible.

13       “We give particular deference to credibility

14   determinations that are based on the adjudicator’s observation

15   of the applicant’s demeanor, in recognition of the fact that

16   the IJ’s ability to observe the witness’s demeanor places her

17   in the best position to evaluate whether apparent problems in

18   the witness’s testimony suggest a lack of credibility or,

19   rather, can be attributed to an innocent cause such as

20   difficulty understanding the question.”   Jin Chen v. U.S. Dep’t

21   of Justice, 426 F.3d 104, 113 (2d Cir. 2005).   We defer to the

22   agency’s demeanor finding here because the IJ provided several
                                     3
1    specific examples of Wang’s hesitancy and nonresponsive

2    answers, and these examples are supported by the record.     Cf.

3    Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

4    2006) (“We can be still more confident in our review of

5    observations about an applicant’s demeanor where, as here, they

6    are supported by specific examples of inconsistent

7    testimony.”).

8        Wang took long pauses and had difficulty answering

9    questions on direct and cross examination regarding his

10   persecution, his church attendance in China, his police

11   interrogation, and the sermons he heard at his churches in China

12   and the United States.   Wang also testified inconsistently,

13   first stating that, at the time of his arrest, his only son was

14   almost one year old, but then acknowledging that his son was

15   born four days before the alleged arrest.    The agency

16   reasonably concluded that this inconsistency called into

17   question whether Wang had actually lived through the events he

18   described.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

19   534 F.3d at 166-67.   And contrary to Wang’s argument that he

20   had no opportunity to explain this inconsistency, the record

21   reflects that Government counsel confronted Wang about it, and

22   his explanation was that he had trouble remembering.      The IJ
                                    4
 1   was not compelled to accept that explanation, particularly

 2   because Wang also testified that it was a traumatic experience

 3   to be separated from his newborn child while he was detained.

 4   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner

 5   must do more than offer a plausible explanation for his

 6   inconsistent statements to secure relief; he must demonstrate

 7   that a reasonable fact-finder would be compelled to credit his

 8   testimony.” (quotation marks omitted)).

 9       Wang now argues, for the first time, that his mistake is

10   attributable to the Chinese practice of considering a newborn

11   to be a year old.   As the Government argues, this explanation

12   was not exhausted because neither Wang nor his attorney provided

13   this explanation to the IJ or on appeal to the BIA.    Foster v.

14   U.S. INS, 376 F.3d 75, 78 (2d Cir. 2004).     And Wang has not

15   provided an affidavit or objective evidence to support his

16   attorney’s assertion.   See INS v. Phinpathya, 464 U.S. 183, 188

17   n.6 (1984) (an attorney’s statements in a brief are not

18   evidence).   Moreover, even crediting the theory, the

19   explanation does not work because it does not resolve why Wang

20   gave his son’s age as almost one year.     See Majidi, 430 F.3d

21   at 80. Nor does Wang’s explanation (that he was nervous and made

22   innocent mistakes) compel a contrary conclusion.      Id.
                                    5
1        In sum, Wang’s hesitancy, lack of responsiveness, and

2    inconsistency constitute substantial evidence for the adverse

3    credibility determination.   See 8 U.S.C.

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

5    adverse credibility determination is dispositive of asylum,

6    withholding of removal, and CAT relief because all three claims

7    are based on the same factual predicate.   See Paul v. Gonzales,

8    444 F.3d 148, 156-57 (2d Cir. 2006).

9        For the foregoing reasons, the petition for review is

10   DENIED.

11                                FOR THE COURT:
12                                Catherine O’Hagan Wolfe, Clerk




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