         09-3552-ag
         Jiang v. Holder
                                                                                       BIA
                                                                                 Brennan, IJ
                                                                               A094 824 889
                            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            Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl            Street, in the City of
 4       New York, on the 17 th day of August,           two thousand ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                GUIDO CALABRESI,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _______________________________________
12
13       XUE MING JIANG,
14                Petitioner,
15
16                         v.                                   09-3552-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:               Dawn S. Conrad, Trial Attorney
26                                     (Francis W. Fraser, Senior
27                                     Litigation Counsel, Tony West,
28                                     Assistant Attorney General), Office
29                                     of Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, 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        Petitioner Xue Ming Jiang, a native and citizen of

6    China, seeks review of the July 24, 2009 order of the BIA,

7    affirming the October 15, 2007 decision of Immigration Judge

8    (“IJ”) Noel A. Brennan denying his application for asylum,

9    withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).     In re Xue Ming Jiang, No. A094 824

11   889 (B.I.A. July 24, 2009), aff’g No. A094 824 889 (Immigr.

12   Ct. N.Y. City Oct. 15, 2007).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we review both

16   the BIA’s and IJ’s decisions.       See Yan Chen v. Gonzales, 417

17   F.3d 268, 271 (2d Cir. 2005).       The applicable standards of

18   review are well-established.     See 8 U.S.C. § 1252(b)(4)(B);

19   Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); see also

20   Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

21       Substantial evidence supports the agency’s adverse

22   credibility determination.     For asylum applications governed

23   by the amendments made to the Immigration and Nationality

                                     2
1    Act by the REAL ID Act of 2005, the agency may, considering

2    the totality of the circumstances, base a credibility

3    finding on an asylum applicant’s demeanor, the plausibility

4    of his or her account, and inconsistencies in his or her

5    statements, “without regard to whether” they go “to the

6    heart of the applicant’s claim.”   8 U.S.C. §

7    1158(b)(1)(B)(iii).   Here, the record supports the IJ’s

8    findings that: (1) Jiang provided inconsistent testimony

9    regarding the details of his arrest; (2) Jiang provided

10   evasive and inconsistent testimony regarding whether he was

11   employed after he was released from detention; (3) Jiang

12   failed to provide an adequate explanation as to how he was

13   able to obtain travel visas after he was released from

14   detention, given that he was expected to report monthly to

15   Chinese authorities; (4) Jiang’s negative demeanor was

16   impacted by his quirky behavior, which included a “forced

17   cough” during certain parts of his testimony; (5) Jiang

18   testified implausibly when he claimed that he did not know

19   how long his friend was detained, even though he and his

20   friend were arrested together and though he submitted a

21   letter from his friend which indicated that his friend was

22   detained for two weeks; and (6) Jiang testified implausibly

23   that he practiced Falun Gong alone in his house in Brooklyn,

                                   3
1    but submitted photographs thereby indicating that someone

2    else had been present on at least three occasions.

3        To the extent Jiang challenges the IJ’s other

4    credibility findings, we decline to consider these

5    arguments.   Even if the IJ’s remaining findings were in

6    error, remand would be futile as we can confidently predict

7    that the agency would reach the same conclusion on remand.

8    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342

9    (2d Cir. 2006).   Accordingly, the IJ properly denied Jiang’s

10   application for withholding of removal and CAT relief

11   because the only evidence that he was likely to be

12   persecuted or tortured depended on his credibility.      See

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

14       For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

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

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

19   oral argument in this petition is DENIED in accordance with

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

21   Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24
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