     16-2257
     Dong v. Sessions
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A087 651 012

                             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   8th day of September, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   XING FENG DONG,
14            Petitioner,
15
16                      v.                                           16-2257
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     John Chang, New York, NY.
24
25   FOR RESPONDENT:                     Joyce R. Branda, Acting Assistant
26                                       Attorney General, Mary Jane Candaux,
27                                       Assistant Director, Matthew A.
28                                       Connelly, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       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 Xing Feng Dong, a native and citizen of the

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

7    decision of the BIA affirming a July 16, 2014 decision of an

8    Immigration Judge (“IJ”) denying Dong’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”). In re Xing Feng Dong, No. A087 651 012 (B.I.A.

11   June 23, 2016), aff’g No. A087 651 012 (Immig. Ct. N.Y.C. July

12   16, 2014). We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we review both the

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

16   F.3d 391, 394 (2d Cir. 2005). The “substantial evidence”

17   standard of review applies to the IJ’s factual findings, and

18   we review questions of law de novo. See 8 U.S.C. § 1252(b)(4);

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

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

21   circumstances,” base a credibility finding on an asylum

22   applicant’s “demeanor, candor, or responsiveness,” the

                                   2
1    plausibility of his account, and inconsistencies in his

2    statements and other record evidence “without regard to

3    whether” those inconsistencies go “to the heart of the

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

5    v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per curiam).

6    “A petitioner must do more than offer a plausible explanation

7    for his inconsistent statements to secure relief; he must

8    demonstrate that a reasonable fact-finder would be compelled

9    to credit his testimony.”   Majidi v. Gonzales, 430 F.3d 77, 80

10   (2d Cir. 2005) (internal quotation marks and citations

11   omitted).

12       Substantial evidence supports the agency’s determination

13   here that Dong was not credible. The agency reasonably relied

14   on inconsistencies between Dong’s testimony and the testimony

15   of his witness, Fang Lin. Dong testified that he was fired from

16   his job as a barber in 2008 after his arrest and detention for

17   practicing Falun Gong. Lin testified, however, that she had her

18   hair cut by Dong in 2009, and saw him several times that year,

19   at the same store where he cut her hair in 2007. Dong contends

20   that the agency should not have relied on Lin’s testimony

21   because she was confused and very nervous, but the IJ determined

22   that Lin was credible, and because he had the “unique advantage”

                                    3
1    of having heard directly from the witnesses on the stand, his

2    credibility determinations are afforded “particular

3    deference.” Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73 (2d Cir.

4    2004), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t

5    of Justice, 494 F.3d 296 (2d Cir. 2007). Accordingly, as the

6    agency found, this inconsistency called into question both

7    whether Dong lost his job and whether the event leading to his

8    firing—his arrest for Falun Gong—actually occurred. See Siewe

9    v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (holding that “a

10   single instance of false testimony may . . . infect the balance

11   of the alien’s uncorroborated or unauthenticated evidence”).

12        The agency also reasonably relied in its adverse

13   credibility finding on parts of Dong’s testimony that were

14   implausible and incoherent. For example, Dong testified that

15   he did not know how many times the police had been to his parents’

16   house looking for him since he left China, or whether his parents

17   had told the police of his whereabouts, even though he testified

18   that he talks with his parents on the phone and these matters

19   should have been important to him, given his history with the

20   police and concern for his parents’ safety. The agency

21   reasonably found that Dong’s testimony on these points was vague

22   and evasive. Zhou Yun Zhang, 386 F.3d at 73 (affording

                                     4
1    particular deference to the IJ because he is able to “assess[]

2    testimony together with witness demeanor”).

3        Dong also testified that he wanted his parents to tell the

4    police that he was in the United States because that might make

5    the police stop their visits. But when asked why he did not tell

6    them to do so, he said that he did not want to harm his parents.

7    The agency reasonably found that this testimony “borders on the

8    incoherent.” See id. at 74 (holding deference is due to findings

9    based on “inconsistent statements” or “inherently improbable

10   testimony”).

11       The agency also relied on Dong’s failure to corroborate his

12   continuing practice of Falun Gong. “An applicant’s failure to

13   corroborate his or her testimony may bear on credibility,

14   because the absence of corroboration in general makes an

15   applicant unable to rehabilitate testimony that has already

16   been called into question.” Biao Yang v. Gonzales, 496 F.3d 268,

17   273 (2d Cir. 2007) (per curiam). Dong testified that he resumed

18   his practice of Falun Gong in the United States and that he

19   sometimes practiced in a park with “many” other people. He

20   testified that the best person to corroborate his practice of

21   Falun Gong in the United States would be his wife, but in her

22   affidavit, his wife declared that she herself was not a

                                    5
1    practitioner of Falun Gong. The agency therefore reasonably

2    inferred that she would not be able to discern whether Dong’s

3    practice of Falun Gong was genuine. See Siewe, 480 F.3d at 168-69

4    (affording deference to the agency’s inference so long as it

5    is “tethered to the evidentiary record”); Xiao Ji Chen v. U.S.

6    Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006) (noting

7    that weight afforded to the applicant’s evidence in immigration

8    proceedings lies largely within agency discretion). Because

9    Dong’s testimony was not otherwise credible, the agency

10   reasonably relied on his failure to present any witness from

11   the park to corroborate his Falun Gong practice in rejecting

12   his claim. Biao Yang, 496 F.3d at 273.

13        Dong contends that the inconsistencies and omissions

14   relied on by the agency do not go to the heart of his claim.

15   But the testimonial inconsistencies regarding Dong’s loss of

16   his job do go to the heart of his claim: they relate to a central

17   alleged consequence of Dong’s purported practice of Falun Gong

18   in China. Moreover, the agency is allowed to rely on

19   inconsistencies and omissions that “do not directly relate to

20   the applicant’s claim of persecution.” Xiu Xia Lin, 534 F.3d

21   at 164.



                                    6
1        Given the inconsistency findings and the lack of

2    corroboration where one would expect to find it, substantial

3    evidence supports the agency’s adverse credibility

4    determination. See id. at 165-66. The adverse credibility

5    determination is dispositive of asylum, withholding of removal,

6    and CAT relief because all three claims are based on the same

7    factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57

8    (2d Cir. 2006).

9        For the foregoing reasons, the petition for review is

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

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

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

13   is DISMISSED as moot. Any pending request for oral argument in

14   this petition is DENIED in accordance with Federal Rule of

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

16   34.1(b).

17                                FOR THE COURT:
18                                Catherine O’Hagan Wolfe, Clerk




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