    16-2050
    Dong v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A206 052 384

                            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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    12th day of October, two thousand seventeen.

    PRESENT:
             JON O. NEWMAN,
             RICHARD C. WESLEY,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    XINGXIONG DONG,
             Petitioner,

                       v.                                            16-2050
                                                                     NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Gary J. Yerman, New York, NY.

    FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
                                         Attorney General; Paul Fiorino,
                                         Senior Litigation Counsel; Jenny C.
                                         Lee, Trial Attorney, Office of
                                         Immigration Litigation, United
                                         States Department of Justice,
                                         Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Xingxiong Dong, a native and citizen of the

People’s Republic of China, seeks review of a May 23, 2016,

decision of the BIA affirming an October 31, 2014, decision of

an Immigration Judge (“IJ”) denying Dong’s application for

asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”).     In re Xingxiong Dong, No. A206 052

384 (B.I.A. May 23, 2016), aff’g No. A206 052 384 (Immig. Ct.

N.Y. City Oct. 31, 2014).    We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed the

IJ’s decision as modified by the BIA, and reach only the adverse

credibility determination.    See Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 522 (2d Cir. 2005).       We review the

adverse credibility determination for substantial evidence.

8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

165-66 (2d Cir. 2008).


                                2
    The agency may, “[c]onsidering the totality of the

circumstances,” base an adverse credibility determination on

an applicant’s “demeanor, candor, or responsiveness,” as well

as inconsistencies or omissions in an applicant’s oral and

written statements and other record evidence, regardless of

whether any such discrepancies “go[] to the heart of the

applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

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

determination unless . . . it is plain that no reasonable

fact-finder could make such an adverse credibility ruling.”

Xiu Xia Lin, 534 F.3d at 167.

    Substantial evidence supports the agency’s conclusion that

Dong was not credible.     The agency reasonably relied on a

discrepancy regarding Dong’s introduction to Christianity.

See 8 U.S.C. § 1158(b)(1)(B)(iii).     This discrepancy is

supported by the record.    Dong’s application, testimony, and

evidence stated that he first came into contact with

Christianity on November 17, 2011, when he attended an

underground church at his sister’s suggestion.      However, on

cross examination, Dong testified that he came from a Christian

family; that both his parents and wife, whom he married in 2000,
                                3
were Christian and occasionally attended underground church

services; and that his parents taught him and his sister about

Christianity when they were children.    While it is plausible

that Dong did not consider himself to be Christian until he

attended a church service, this does not explain why Dong

emphasized his sister’s Christianity while omitting that his

wife and parents are also Christian.    Majidi v. Gonzales, 430

F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner must do more than

offer a plausible explanation for his inconsistent statements

to secure relief; ‘he must demonstrate that a reasonable

fact-finder would be compelled to credit his testimony.”

(quotation marks omitted)); see also Xiu Xia Lin, 534 F.3d at

166 n.3 (“An inconsistency and an omission

are . . . functionally equivalent.”).

    The agency reasonably concluded that Dong’s letter from his

sister and the absence of letters from his wife and parents

further undermined his credibility.    Dong’s sister’s letter

also omitted that their parents and Dong’s wife are Christian,

as well as omitting the reason that she recommended Dong attend

church.   Xiu Xia Lin, 534 F.3d at 166-67 & n.3 (upholding

agency’s reliance on omissions in letters as support for an
                              4
adverse credibility determination).    Dong’s explanation that

his sister simplified her letter because she was worried it

might be intercepted by the authorities is not compelling given

her statement in the letter that she preached to Dong.   Majidi,

430 F.3d at 80-81.    And the absence of letters from Dong’s

parents or wife made Dong unable to rehabilitate or clarify his

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

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

testimony may bear on credibility, because the absence of

corroboration in general makes an applicant unable to

rehabilitate testimony that has already been called into

question.”).    The agency reasonably rejected Dong’s

explanation that he did not want to implicate his parents or

wife given both his willingness to obtain a letter from his

sister describing her “repetitive preaching” and his testimony

that his family has not had any problems on account of their

Christianity.     See 8 U.S.C. § 1252(b)(4) (courts may not

reverse agency’s determination regarding the availability of

corroborating evidence unless we are “compelled to conclude

that such corroborating evidence is unavailable.”).


                                5
    These discrepancies call into question Dong’s timeline and

motivation for practicing Christianity, and thus, the

believability of his claim.   See Siewe v. Gonzales, 480 F.3d

160, 170 (2d Cir. 2007) (“[A] single false document or a single

instance of false testimony may (if attributable to petitioner)

infect the balance of the alien’s uncorroborated or

unauthenticated evidence.”); see also Xiu Xia Lin, 534 F.3d at

164 (“[I]n evaluating an asylum applicant’s credibility, an IJ

may rely on omissions and inconsistencies that do not directly

relate to the applicant’s claim of persecution as long as the

totality of the circumstances establish that the applicant is

not credible.”).

    Dong argues that the agency should have separately

addressed whether he has a well-founded fear of persecution

based on his church attendance in the United States.   However,

Dong did not press this claim before the agency and did not

submit country conditions evidence to show that he would be

targeted absent past persecution.   See Foster v. U.S. INS, 376

F.3d 75, 78 (2d Cir. 2004) (requiring petitioner to raise issues

to the agency in order to preserve them for judicial review).

Moreover, Dong’s lack of credibility regarding his past
                               6
practice of Christianity calls into question the sincerity of

his religious practice in the United States and the credibility

of his intent to continue to practice if returned to China.

Siewe, 480 F.3d at 170.

    Because Dong’s claims were all based on the same factual

predicate, the adverse credibility determination is

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

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

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot.     Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                                7
