         12-2182
         Jiang v. Lynch
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A089 810 655
                           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 25th day of March, two thousand sixteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                GUIDO CALABRESI,
 9                ROSEMARY S. POOLER,
10                     Circuit Judges.
11       _____________________________________
12
13       XIONG JIANG,
14                Petitioner,
15
16                        v.                                    12-2182
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, New York
24
25       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
26                                     Assistant Attorney General; Cindy S.
27                                     Ferrier, Assistant Director;
28                                     Kimberly A. Burdge, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United States Department of Justice,
31                                     Washington, D.C.
 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

 4   is DENIED.

 5       Xiong Jiang, a native and citizen of China, seeks

 6   review of a May 4, 2012, decision of the BIA affirming the

 7   August 24, 2010, decision of Immigration Judge (“IJ”) Sandy

 8   Hom, denying his application for asylum, withholding of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Xiong Jiang, No. A089 810 655 (B.I.A. May 4,

11   2012), aff’g No. A089 810 655 (Immig. Ct. N.Y. City Aug. 24,

12   2010).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   both the BIA’s and IJ’s opinions, including the portions of

16   the IJ’s decision not explicitly discussed by the BIA.     Yun-

17   Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).        The

18   applicable standards of review are well-established.     See

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009).

21       For applications such as Jiang’s, governed by the

22   amendments made to the Immigration and Nationality Act by

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

                                     2
 1   totality of the circumstances,” base a credibility finding

 2   on the applicant’s “demeanor, candor, or responsiveness,”

 3   the plausibility of his account, and inconsistencies in his

 4   statements, without regard to whether they go “to the heart

 5   of the applicant’s claim.”     See 8 U.S.C.

 6   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.

 7   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).    We “defer

 8   therefore to an IJ’s credibility determination unless, from

 9   the totality of the circumstances, it is plain that no

10   reasonable fact-finder could make” such a ruling.     Xiu Xia

11   Lin, 534 F.3d at 167.    We conclude that the agency’s adverse

12   credibility determination is supported by substantial

13   evidence.

14       Contrary to Jiang’s arguments, the agency did not err

15   in relying on the asylum officer’s notes from the credible

16   fear interview, as the notes meet the standards for

17   reliability laid out in Ming Zhang v. Holder, 585 F.3d 715,

18   723-25 (2d Cir. 2009).    Although the notes are not a

19   transcript, because the interview was memorialized in a

20   typewritten document which specified the questions asked and

21   Jiang’s answers, the notes are sufficiently reliable.     See

22   Ming Zhang, 585 F.3d at 725.    As to Jiang’s argument that


                                     3
 1   the interview notes reflect problems with translation, Jiang

 2   did not raise this issue at the credible fear interview or

 3   before the IJ.   Moreover, the notes do not indicate any

 4   translation problem as the asylum officer asked Jiang

 5   numerous questions about handing out flyers, including

 6   follow-up questions requesting clarification, which Jiang

 7   answered directly, volunteering additional details.

 8       The inconsistencies between Jiang’s statements during

 9   that interview and his testimony before the IJ provide

10   substantial evidence to support the agency’s adverse

11   credibility determination.   Both the BIA and the IJ

12   reasonably focused on Jiang’s inconsistency regarding

13   whether he spoke to people when handing out Falun Gong

14   flyers.   At the credible fear interview, when asked how he

15   distributed the flyers, Jiang volunteered that he talked to

16   people at their homes, stated that he told them about the

17   contents of the flyers, and explained that he told them

18   about the benefits of Falun Gong.   However, at the hearing

19   before the IJ, when asked if he spoke to the individuals to

20   whom he gave flyers, Jiang responded in the negative, both

21   initially and when the question was repeated.   Because Jiang

22   was asked multiple times by the asylum officer and again



                                   4
 1   before the IJ whether he spoke to people, and gave

 2   contradictory answers, the agency properly relied on this

 3   inconsistency as a basis for an adverse credibility finding.

 4   See Xiu Xia Lin, 534 F.3d at 167 (providing that an IJ may

 5   support an adverse credibility determination with “any

 6   inconsistency or omission”).     Given Jiang’s multiple

 7   responses indicating he spoke to people about Falun Gong,

 8   the agency was not required to credit his explanation that

 9   the interviewer may have been asking him about the contents

10   of the flyers.     See Majidi v. Gonzales, 430 F.3d 77, 80-81

11   (2d Cir. 2005) (stating that the agency need not credit an

12   explanation unless that explanation would compel a

13   reasonable fact-finder to do so).

14          Jiang also asserts that the BIA did not consider the

15   totality of the circumstances because it cited only one

16   discrepancy.     Because the BIA did not reject the IJ’s other

17   findings, those findings remain valid bases for the adverse

18   credibility determination.     See Yun-Zui Guan, 432 F.3d at

19   394.    And those additional inconsistencies are supported by

20   the record.    For example, Jiang stated at the credible fear

21   interview that he was beaten seven or eight times and

22   interrogated by six men, but testified before the IJ that he

23   was beaten eight or nine times and interrogated by only
                                     5
 1   three men.     Similarly, at the interview, Jiang twice denied

 2   having been arrested, changing his answer only when

 3   confronted with his earlier statement that he had been

 4   arrested.     These additional findings demonstrate that the

 5   agency considered the totality of the circumstances.       Given

 6   the reliability of the interview and the inconsistencies

 7   between the interview and the testimony, it is not plain

 8   that “no reasonable fact-finder could make such an adverse

 9   credibility ruling,” and we defer to the agency’s

10   credibility determination.     Xiu Xia Lin, 534 F.3d at 167.

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.     Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21




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