     15-4038
     Yang v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A201 295 499
                             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   4th day of May, two thousand seventeen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            DEBRA ANN LIVINGSTON,
10            RAYMOND J. LOHIER, JR.,
11                 Circuit Judges.
12   _____________________________________
13
14   WEN CAI YANG,
15            Petitioner,
16
17                      v.                                           15-4038
18                                                                   NAC
19   JEFFERSON B. SESSIONS, III, UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     James A. Lombardi, New York, NY.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Shelley
28                                       R. Goad, Assistant Director; Kristen
29                                       Giuffreda Chapman, Trial Attorney,
30                                       Office of Immigration Litigation,
31                                       United States Department of Justice,
32                                       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 Wen Cai Yang, a native and citizen of the

 6   People’s Republic of China, seeks review of a December 3, 2015,

 7   decision of the BIA affirming an August 14, 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 Wen Cai Yang, No. A201 295 499

11   (B.I.A. Dec. 3, 2015), aff’g No. A201 295 499 (Immig. Ct. N.Y.

12   City Aug. 14, 2014).   We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

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

15   the BIA’s and IJ’s decisions.        Yun-Zui Guan v. Gonzales, 432

16   F.3d 391, 394 (2d Cir. 2005).   The standards of review are well

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

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

19   “[c]onsidering the totality of the circumstances,” base an

20   adverse credibility determination on an applicant’s “demeanor,

21   candor, or responsiveness,” internally inconsistent testimony,

22   discrepancies   between    an   applicant’s    oral    and   written

23   statements, and discrepancies between an applicant’s testimony

                                      2
1    and other record evidence.   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

2    Xia Lin, 534 F.3d at 163-64.       “We defer . . . to an IJ’s

3    credibility determination unless . . . it is plain that no

4    reasonable fact-finder could make such an adverse credibility

5    ruling.”   Xiu Xia Lin, 534 F.3d at 167.    As discussed below,

6    substantial evidence supports the agency’s determination that

7    Yang was not credible.

8        First, the agency reasonably relied on an omission from

9    Yang’s asylum application regarding whether the police visited

10   his parents after he left China.    Xiu Xia Lin, 534 F.3d at 166

11   n.3 (observing that “[a]n inconsistency and an omission are

12   . . . functionally equivalent” for credibility purposes).

13   Yang testified for the first time on cross-examination that the

14   police visited his parents in April 2011 and ransacked their

15   home when they would not reveal his location.    When asked why

16   he did not include this incident in his asylum application or

17   written statement (completed in April 2012), Yang was

18   nonresponsive, stating only that his parents reported this

19   information over the telephone.    Yang now argues that the

20   omission should be excused because he is uneducated and did not

21   know what to include in his asylum application.     This

22   explanation is not compelling, however, because Yang prepared

23   his asylum application with the assistance of counsel.     See

                                    3
1    Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A

2    petitioner ‘must do more than offer a “plausible” explanation

3    for his inconsistent statements to secure relief; “he must

4    demonstrate that a reasonable fact-finder would be compelled

5    to credit his testimony.”’” (quoting Zhou Yun Zhang v. U.S. INS,

6    386 F.3d 66, 76 (2d Cir. 2004))).

7           Yang also testified inconsistently about whether his

8    parents received and kept a summons from the Chinese police:

9    He initially stated that the police took the summons with them,

10   but on further questioning stated that the police gave the

11   summons to his parents and that his parents did not know where

12   they    put   it.       Taken   together,   these    are   material

13   inconsistencies that call into question the basis for Yang’s

14   fear of future harm in China.    Xian Tuan Ye v. Dep’t of Homeland

15   Sec., 446 F.3d 289, 295 (2d Cir. 2006) (even one material

16   inconsistency may provide substantial evidence for an adverse

17   credibility determination).

18          Third, Yang’s testimony that he read the Bible once every

19   two weeks or once a month while in China contradicted his

20   credible fear interview, in which he stated that he had never

21   read the Bible.      This discrepancy regarding Yang’s religious

22   practice in China is further support for the adverse credibility

23   determination.      Xiu Xia Lin, 534 F.3d at 167.   Yang now argues

                                       4
1    that the agency placed too much weight on this inconsistency

2    because his credible fear interview was not reliable.    This

3    argument lacks merit.   The IJ reasonably concluded that the

4    credible fear interview record is reliable under the criteria

5    in Ming Zhang v. Holder, 585 F.3d 715 (2d Cir. 2009).     The

6    questions and answers are typewritten and appear to reflect a

7    verbatim or nearly verbatim account of the questions posed and

8    Yang’s answers; a Mandarin interpreter was used for the

9    interview; Yang indicated that he understood the interpreter

10   and the questions asked; the record contains no signs of

11   coercion; and the questions asked appear designed to elicit the

12   details of Yang’s asylum claim (for example, the officer asked

13   Yang follow-up questions regarding his alleged arrest and

14   detention and his religious beliefs).   Ming Zhang, 585 F.3d at

15   725-26.   And the IJ was not required to accept Yang’s

16   explanation that he was confused during the credible fear

17   interview, given his apparently clear answers to the questions.

18   Majidi, 430 F.3d at 80-81.

19       The agency’s demeanor finding adds further support to the

20   overall adverse credibility determination. Particularly on

21   cross-examination, Yang took long pauses and was not responsive

22   to questions about why he obtained a passport in 2009 and why

23   he did not get a letter from his parents, even after the IJ and

                                   5
1    the Government’s attorney drew attention to his lack of

2    responsiveness.        Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d Cir.

3    2007) (giving “particular deference” to IJ’s finding that

4    testimony was evasive and nonresponsive).

5         The   agency       also   reasonably        concluded    that    Yang’s

6    corroborating evidence was insufficient to rehabilitate his

7    credibility.     See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

8    Cir. 2007) (“An applicant’s failure to corroborate his . . .

9    testimony may bear on credibility, because the absence of

10   corroboration     in     general   makes        an   applicant   unable   to

11   rehabilitate testimony that has already been called into

12   question.”).     In particular, as the agency found, Yang did not

13   submit a letter from his parents to corroborate the April 2011

14   police visit, and he was nonresponsive when asked to explain

15   that omission.    Yang argues that the letters he submitted from

16   his aunt and a church friend in China were sufficient.               However,

17   these letters do not mention the police visit and thus cannot

18   rehabilitate his problematic testimony on this issue.

19        Given the discrepancies relating to Yang’s religious

20   practice and the basis for Yang’s fear of future harm, as well

21   as   Yang’s   evasive      demeanor       and   lack   of    rehabilitative

22   corroborating evidence, the totality of the circumstances

23   supports the agency’s ruling.             Xiu Xia Lin, 534 F.3d at 167.

                                           6
1    Because Yang’s claims were all based on the same factual

2    predicate,    the   adverse   credibility   determination      is

3    dispositive of asylum, withholding of removal, and CAT relief.

4    Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

5        For the foregoing reasons, the petition for review is

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

7    that the Court previously granted in this petition is VACATED,

8    and any pending motion for a stay of removal in this petition

9    is DISMISSED as moot.    Any pending request for oral argument

10   in this petition is DENIED in accordance with Federal Rule of

11   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12   34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk




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