     15-3346
     Ye v. Lynch
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A200 932 280
                        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   6th day of January, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   CHANG PIN YE,
14            Petitioner,
15
16                 v.                                                15-3346
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Ai Tong, New York, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Nancy
27                                       Friedman, Senior Litigation
28                                       Counsel; Margaret A. O’Donnell,
29                                       Attorney, Office of Immigration
30                                       Litigation, United States
31                                       Department of Justice, Washington,
32                                       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 Government’s motion for

4    summary denial is DENIED, and, having reviewed the petition on

5    the merits, it is further ORDERED that the petition for review

6    is DENIED.

7        Petitioner Chang Pin Ye, a native and citizen of the

8    People’s Republic of China, seeks review of an October 6, 2015,

9    decision of the BIA affirming a May 1, 2014, decision of an

10   Immigration Judge (“IJ”) denying his application for asylum,

11   withholding of removal, and relief under the Convention Against

12   Torture (“CAT”).   In re Chang Pin Ye, No. A200 932 280 (B.I.A.

13   Oct. 6, 2015), aff’g No. A200 932 280 (Immig. Ct. N.Y. City May

14   1, 2014).    We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16   Government’s Motion for Summary Denial

17       We have the “inherent authority . . . to dismiss an appeal

18   or petition for review as frivolous when the appeal or petition

19   presents no arguably meritorious issue for our consideration.”

20   Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995).   In light of this

21   authority, we may grant summary denial when a petition is both

22   without merit and frivolous.    See id. at 16-17 (recognizing


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1    that “[i]n substance, the granting of motions for summary

2    affirmance . . . is not significantly distinguishable from

3    dismissal of appeals as frivolous”).      Summary disposition,

4    however, is “a rare exception to the completion of the appeal

5    process . . . [and] is available only if an appeal is truly

6    ‘frivolous.’”   United States v. Davis, 598 F.3d 10, 13-14 (2d

7    Cir. 2010).

8        In its motion for summary denial, the Government argues

9    that Ye “fails to identify any specific record evidence

10   compelling a finding he testified credibly” and thus “waives

11   this dispositive issue on review.”   Gov. Mot. at 2, 8.    The

12   Government is incorrect.   Ye challenges several of the IJ’s

13   specific findings regarding the inconsistencies in Ye’s

14   application and testimony and argues that any such

15   inconsistencies are insufficient to support the IJ’s adverse

16   credibility determination.   Accordingly, Ye has raised

17   arguably meritorious issues in his appeal, and we deny the

18   Government’s motion for summary denial.    Nevertheless, for the

19   reasons discussed below, Ye’s arguments are themselves

20   unpersuasive and we deny his petition for review on the merits.

21   Petition for Review

22       Under the circumstances of this case, we have reviewed both


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1    the IJ’s and the BIA’s opinions “for the sake of completeness.”

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

3    2006).   The applicable standards of review are well

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

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

6    “[c]onsidering the totality of the circumstances, . . . base

7    a credibility determination on the demeanor, candor, or

8    responsiveness of the applicant,” and inconsistencies in the

9    record evidence “without regard to whether” those

10   inconsistencies go “to the heart of the applicant’s claim.”

11   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

12   Substantial evidence supports the agency’s determination that

13   Ye was not credible when he claimed that he suffered persecution

14   and fears future persecution in China because of his Christian

15   faith.

16       The IJ reasonably relied on Ye’s demeanor in determining

17   that he was not credible, noting that his testimony was evasive

18   and unresponsive.   See 8 U.S.C. § 1158(b)(1)(B)(iii); see also

19   Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (noting

20   that the IJ has a “unique advantage” in making the credibility

21   finding).   The record shows that Ye was evasive when testifying

22   about how he found his original attorney (who filed his asylum


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1    application and was subsequently convicted of asylum fraud).

2    Moreover, he was unable to explain in any detail why he is

3    Christian, despite his claim to have proselytized the religion.

4    The IJ observed specifically that Ye’s demeanor “changed

5    dramatically” when the Government asked him why he was a

6    Christian. C.A.R. at 54.

7        The IJ noted several additional aspects of the record that

8    it characterized as inconsistencies.        See C.A.R. 54-59.   For

9    example, the IJ faulted Ye for the fact that the medical report

10   did not reflect a head exam or the treatment of bruises that

11   Ye claims to have suffered as a result of his torture in

12   detention.    Moreover, the IJ expressed concern that Ye’s

13   father’s initial letter in support of his application did not

14   mention that police came to visit Ye’s house after Ye’s arrest,

15   but his supplemental letter did.       Finally, the IJ noted that

16   the certificate from Ye’s church confirming his attendance and

17   arrest did not also state that the pastor of the church was

18   arrested.    Why the IJ expected the certificate to reference the

19   pastor’s arrest is not clear.        In the IJ’s view, Ye did not

20   provide sufficient explanations for the inconsistent evidence.

21   See Majidi, 430 F.3d at 80-81.   In his petition, Ye claims that

22   the IJ erred in finding that these were inconsistencies, and


                                      5
1    he attempts to explain them.    Given the deferential standard

2    of review, however, we cannot say that the agency’s adverse

3    credibility determination was not supported by substantial

4    evidence.   8 U.S.C. § 1158(b)(1)(B)(iii).

5        Finally, Ye generally challenges the IJ’s determination

6    that he does not have a well-founded fear of future persecution.

7    The IJ reviewed China’s country conditions and found that Ye

8    did not demonstrate a clear pattern of persecution of members

9    of unregistered Christian churches, especially in the province

10   where Ye resided.   Ye does not address the country conditions

11   issue specifically in his brief; instead, he argues summarily

12   that he should be granted relief “once he makes a showing that

13   he has a well-founded fear of future persecution.”      Pet. Br.

14   at 29.   That argument is insufficient to disturb the agency’s

15   ruling in which we detect no error.   See Santoso v. Holder, 580

16   F.3d 110, 112 & n.1 (2d Cir. 2009) (denying petition where agency

17   considered background materials and rejected a

18   pattern-or-practice claim).    Accordingly, because Ye failed to

19   demonstrate a well-founded fear of persecution on account of

20   his religion, the agency did not err in denying asylum,

21   withholding of removal, and CAT relief.    See Paul v. Gonzales,

22   444 F.3d 148, 156-57 (2d Cir. 2006).


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1       For the foregoing reasons, the Government’s motion for

2   summary denial and the petition for review are DENIED.   As we

3   have completed our review, the pending motion for a stay of

4   removal in this petition is DISMISSED as moot.

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk




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