    14-4281
    Dong v. Lynch
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 078 669
                         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
    19th day of April, two thousand sixteen.

    PRESENT:
             JON O. NEWMAN,
             ROSEMARY S. POOLER,
             RICHARD C. WESLEY,
                  Circuit Judges.
    _____________________________________

    WEI DONG,
                    Petitioner,

                    v.                                               14-4281
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Richard Tarzia, Belle Mead, NJ.

    FOR RESPONDENT:                      Benjamin C. Mizer, Acting Assistant
                                         Attorney General; Shelley R. Goad,
                                         Assistant Director; Kristen
                                         Giuffreda Chapman, Trial Attorney,
                                         Office of Immigration Litigation,
                                         United States Department of Justice,
                                         Washington, D.C.
       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 Wei Dong, a native and citizen of China, seeks

review of an October 16, 2014, decision of the BIA affirming

an April 24, 2013, 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

Wei Dong, No. A205 078 669 (B.I.A. Oct. 16, 2014), aff’g No.

A205 078 669 (Immig. Ct. N.Y. City Apr. 24, 2013). We assume

the    parties’       familiarity    with    the   underlying    facts     and

procedural history in this case.

       Under the circumstances of this case, we have considered

both    the    IJ’s    and   the   BIA’s    opinions   “for   the   sake   of

completeness.”         Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

524, 528 (2d Cir. 2006).            The applicable standards of review

are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

       For asylum applications such as Dong’s, governed by the

REAL ID Act of 2005, the agency may, “[c]onsidering the totality

of     the    circumstances,”       base    a   credibility     finding    on

                                       2
inconsistencies   in   an   asylum   applicant’s   statements   and

evidence, “without regard to whether” those inconsistencies go

“to the heart of the applicant’s claim,” so long as they

reasonably support an inference that the applicant is not

credible.    8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). An omission in an

applicant’s testimony or supporting documents is “functionally

equivalent” to an inconsistency and “can serve as a proper basis

for an adverse credibility determination.” Xiu Xia Lin, 534 F.3d

at 166 n.3. “We defer therefore to an IJ’s credibility

determination unless, from the totality of the circumstances,

it is plain that no reasonable fact-finder could make such an

adverse credibility ruling.” Id. at 167.

    Dong applied for asylum on the basis that he was twice

detained and abused in China on account of his Christian faith.

Substantial evidence supports the agency’s conclusion that Dong

was not credible based on discrepancies among his border

interview, credible fear interview, asylum application, and

testimony.

    When asked during a border interview why he feared

persecution in China, Dong said that because he was not a member

of a political party he was unfairly fined; in his asylum

                                 3
application he stated that he feared persecution because he was

a Christian and had been detained twice. This contradiction

alone   is   sufficient   support       for    the   adverse   credibility

determination because it calls into question whether Dong was

ever detained on account of his religion.             See Xian Tuan Ye v.

Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006).

    Dong’s     descriptions    of        his     detention     were     also

inconsistent and further call into question his claim.                During

his credible fear interview, Dong stated that his second

detention lasted 15 days; his asylum application reflected he

was released after one week. When asked to explain this

discrepancy, Dong testified that he and the interpreter during

the credible fear interview had difficulty hearing one another.

Even if this explanation were credited, while it might explain

the differing accounts of the length of detention, it does not

explain why Dong did not mention detention or religion at all

during the border interview. Dong attempts to conflate the

border and credible fear interviews, suggesting that the

interpretation issues at the credible fear interview explained

why he did not mention his Christian faith during the border

interview. This does not explain the omission because the



                                    4
credible fear interview occurred a month after the border

interview.

    Dong’s testimony further undermined his claim. On direct

examination, he stated that he had no problems with authorities

after his first detention. But he later contradicted himself

by testifying to a second detention. The agency was not required

to accept his explanation that he thought he was being asked

if he had a “face-to-face confrontation” with authorities. See

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

the IJ also reasonably relied on inconsistencies regarding

Dong’s work history: his asylum application reflected that he

stopped working in June 2011 but he testified that he left his

job when he left China in November 2011.      See Xiu Xia Lin, 534

F.3d at 167.

    Nor did the agency err in considering the border and

credible fear interviews. The agency was not required to

subpoena     the   immigration   officers   who   conducted   those

interviews. A party may request the issuance of a subpoena “upon

a satisfactory showing that the presence of the witness is

necessary for the determination of any material matter.”          8

U.S.C. § 1534(d)(1). Dong did not explain why the officers’

presence was necessary. Moreover, assuming Dong wished the

                                  5
officers to testify to the accuracy of the interview records,

the records bore sufficient indicia of reliability. See Ming

Zhang   v.   Holder,   585   F.3d   715,   723-25   (2d   Cir.   2009);

Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004).

    Finally, the agency reasonably gave limited weight to the

unsworn letters from Dong’s father and friend because they were

from interested authors not subject to cross examination. See

Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 215 (B.I.A. 2010),

overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d

130, 133-38 (2d Cir. 2012); see also Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 342 (2d Cir. 2006).

    The totality of the circumstances supports the adverse

credibility determination because the inconsistencies call

into question whether Dong suffered any harm on account of his

religion. Because the only evidence of a threat to Dong’s life

or freedom depended upon his credibility, the agency’s finding

that he was not credible necessarily precludes success on his

claims for 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,

                                    6
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




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