         12-2759
         Jiang v. Holder
                                                                                        BIA
                                                                                     Hom, IJ
                                                                               A093 341 885
                            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 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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 13th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                PETER W. HALL,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _______________________________________
12
13       JIN HUA JIANG,
14                Petitioner,
15
16                         v.                                   12-2759
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Lee Ratner, Law Offices of Michael
24                                     Brown, PC, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
27                                     Assistant Attorney General; Russell
28                                     J.E. Verby, Senior Litigation
29                                     Counsel; John D. Williams, Trial
 1                          Attorney, Office of Immigration
 2                          Litigation, United States Department
 3                          of Justice, Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DISMISSED in part and DENIED in part.

 9       Jin Hua Jiang, a native and citizen of the People’s

10   Republic of China, seeks review of a June 18, 2012, decision

11   of the BIA affirming the May 27, 2011, decision of

12   Immigration Judge (“IJ”) Sandy K. Hom, which pretermitted

13   his application for asylum as untimely and denied his

14   applications for withholding of removal and relief under the

15   Convention Against Torture (“CAT”).   In re Jin Hua Jiang,

16   No. A093 341 885 (B.I.A. June 18, 2012), aff’g No. A093 341

17   885 (Immig. Ct. N.Y. City May 27, 2011).   We assume the

18   parties’ familiarity with the underlying facts and

19   procedural history in this case.

20       Because the BIA stated alternate grounds for denial

21   without rejecting any of the IJ’s reasoning, we have

22   reviewed both the IJ’s and the BIA’s decisions.   See Ming

23   Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).     The

24   applicable standards of review are well-established.



                                  2
 1   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

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

 3       Under 8 U.S.C. § 1158(a)(3), no court shall have

 4   jurisdiction to review the agency’s finding that an asylum

 5   application was untimely under § 1158(a)(2)(B) unless a

 6   petition raises a constitutional claim or question of law.

 7   See id. § 1252(a)(2)(D).   Although Jiang’s challenge to the

 8   agency’s pretermission of his asylum application as untimely

 9   is framed in terms of questions of law – whether the agency

10   erred in rejecting probative evidence and whether a fee

11   receipt was sufficient to discharge his burden of proof – we

12   lack jurisdiction to review his challenge because he merely

13   quarrels with the IJ’s factual determination.      See 8 U.S.C.

14   § 1158(a); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

15   315, 329 (2d Cir. 2006).   Accordingly, we dismiss the

16   petition in part as to asylum.      As Jiang has waived any

17   challenge to the agency’s denial of CAT relief, the only

18   issue before us is whether the agency erred in denying

19   withholding of removal.

20       For applications for withholding of removal such as

21   Jiang’s, governed by the amendments made to the Immigration

22   and Nationality Act by the REAL ID Act of 2005, the agency


                                     3
 1   may, considering the totality of the circumstances, base a

 2   credibility finding on an asylum applicant’s “demeanor,

 3   candor, or responsiveness,” and any inconsistencies in his

 4   statements, without regard to whether those inconsistencies

 5   go “to the heart of the applicant’s claim.”   8 U.S.C.

 6   § 1158(b)(1)(B)(iii); see also 8 U.S.C. § 1231(b)(3)©.     This

 7   Court “defer[s] to an IJ’s credibility determination unless,

 8   from the totality of the circumstances, it is plain that no

 9   reasonable fact-finder could make such an adverse

10   credibility ruling.”   Xiu Xia Lin v. Mukasey, 534 F.3d 162,

11   167 (2d Cir. 2008) (per curiam).

12       Here, substantial evidence supports the agency’s

13   adverse credibility determination.   Contrary to Jiang’s

14   contention, the IJ reasonably characterized as inconsistent

15   his testimony about the dates related to his persecution in

16   China because Jiang initially testified that he was reported

17   for hiding a Falun Gong practitioner on September 13, 2004,

18   but later he indicated it was September 28, 2004.   Id.

19   Moreover, as the agency found, Jiang’s inability to recall

20   important dates related to his alleged persecution without

21   prompting from his attorney undermined his credibility.     See

22   Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d


                                   4
 1   Cir. 2005) (affording “particular deference” to credibility

 2   determinations that are based on the adjudicator’s

 3   observation of the applicant’s demeanor).

 4       Jiang also contends that he sufficiently corroborated

 5   his claim.   However, the agency reasonably determined that

 6   Jiang failed to adequately corroborate his Falun Gong

 7   practice in China given that the evidence he provided lacked

 8   the indicia of reliability.   See 8 U.S.C.

 9   § 1158(b)(1)(B)(ii); see also Chuilu Liu v. Holder, 575 F.3d

10   193, 197-98 (2d Cir. 2009); Xiao Ji Chen, 471 F.3d at 342.

11   The agency reasonably afforded limited evidentiary weight to

12   a letter from Jiang’s wife because she lacked personal

13   knowledge of relevant events in China, and to statements

14   from other family members because they were unsworn,

15   unauthenticated, and based on hearsay.    See Xiao Ji Chen,

16   471 F.3d at 342; Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209,

17   215 (BIA 2010), overruled on other grounds by Hui Lin Huang

18   v. Holder, 677 F.3d 130 (2d Cir. 2012).

19       Finally, Jiang’s accurate observation that the IJ

20   misidentified his attorney’s name in the written decision is

21   insufficient to require remand because the error was

22   superficial and did not taint the IJ’s reasoning for denying

23   relief.   Tu Lin v. Gonzales, 446 F.3d 395, 401 (2d Cir.

24   2006).
                                   5
1       For the foregoing reasons, the petition for review is

2   DISMISSED, in part, and DENIED, in part.   As we have

3   completed our review, any stay of removal that the Court

4   previously granted in this petition is VACATED, and any

5   pending motion for a stay of removal in this petition is

6   DENIED as moot.

7                              FOR THE COURT:
8                              Catherine O’Hagan Wolfe, Clerk
9




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