     19-6
     Wei v. Barr
                                                                      BIA
                                                                Douchy, IJ
                                                              A205 288 270
                        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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 17th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   QIANG WEI,
14            Petitioner,
15
16                 v.                                  19-6
17                                                     NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:               John S. Yong, Esq., New York, NY.
24
25   FOR RESPONDENT:               Ethan P. Davis, Acting Assistant
26                                 Attorney General; Anthony P.
27                                 Nicastro, Assistant Director;
28                                 Ilana J. Snyder, Trial Attorney;
 1                                      Alma C. Atassi, Legal Intern,
 2                                      Office of Immigration Litigation,
 3                                      United States Department of
 4                                      Justice, Washington, DC.

 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 DENIED.

 9       Petitioner       Qiang    Wei,    a   native    and     citizen      of   the

10   People’s Republic of China, seeks review of a December 14,

11   2018, decision of the BIA affirming a November 14, 2017,

12   decision   of   an     Immigration        Judge    (“IJ”)      denying    Wei’s

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”).                    In re Qiang

15   Wei, No. A 205 288 270 (B.I.A. Dec. 14, 2018), aff’g No. A

16   205 288 270 (Immig. Ct. N.Y.C. Nov. 14, 2017).                  We assume the

17   parties’ familiarity with the underlying facts and procedural

18   history.

19       We have reviewed both the IJ’s and the BIA’s opinions

20   “for the     sake of       completeness.”         Wangchuck v.      Dep’t      of

21   Homeland   Sec.,     448    F.3d   524,    528    (2d   Cir.    2006).        The

22   standards of review are well established.                      See 8 U.S.C.

23   § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

                                           2
 1   Cir. 2018); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013).

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

 3   circumstances . . . base a credibility determination on the

 4   demeanor, candor, or responsiveness of the applicant,” the

 5   plausibility   of   his    account,   and   inconsistencies    in   his

 6   statements or between his statements and other evidence,

 7   without regard to whether they go “to the heart of the

 8   applicant’s claim.”        8 U.S.C. § 1158(b)(1)(B)(iii).           “We

 9   defer . . . to an IJ’s credibility determination unless . . .

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

11   adverse credibility ruling.”          Xiu Xia Lin v. Mukasey, 534

12   F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d

13   at 76.    The agency’s adverse credibility determination is

14   supported by substantial evidence.

15       Wei’s statements contained multiple discrepancies, some

16   of which concerned matters central to his claim for relief.

17   First, Wei testified that he was beaten in detention, both by

18   the police and by fellow inmates at the police’s instigation.

19   But, in his original written statement, Wei claimed only that

20   the police encouraged other inmates to beat him.          The agency

21   did not err in considering the original statement.                  See


                                       3
 1   Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 111 (2d

 2   Cir. 2006) (holding that discrepancy between an applicant’s

 3   original asylum application and the amended application and

 4   testimony provided substantial evidence in support of adverse

 5   credibility      determination).            And   the     agency   reasonably

 6   concluded that this omission undermined credibility because

 7   the beating by the police was central to his claim.                   See Hong

 8   Fei Gao, 891 F.3d at 78–79 (“[I]n assessing the probative

 9   value of the omission of certain facts, an IJ should consider

10   whether those facts are ones that a credible petitioner would

11   reasonably have been expected to disclose under the relevant

12   circumstances.”); see also Xian Tuan Ye v. Dep’t of Homeland

13   Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that “a

14   material inconsistency in an aspect of [an applicant’s] story

15   that served as an example of the very persecution from which

16   he sought asylum . . . afforded substantial evidence to

17   support the adverse credibility finding” (internal quotation

18   marks and citation omitted)).               The agency was not required

19   to   accept    Wei’s    explanation        that   he    wrote   the   original

20   statement in immigration detention, or that his previous

21   attorney      “only    asked   [him]       to   briefly    write   down”   his


                                            4
 1   experiences,      particularly    since    that    statement      provided

 2   details   about    the   police-instigated        beatings   by    inmates

 3   during the same period.      See Majidi v. Gonzales, 430 F.3d 77,

 4   80 (2d Cir. 2005) (“A petitioner must do more than offer a

 5   plausible    explanation    for   his inconsistent statements to

 6   secure relief; he must demonstrate that a reasonable fact-

 7   finder would be compelled to credit his testimony.” (internal

 8   quotation marks omitted)).

 9       Second, Wei testified that his fellow inmates had been

10   arrested “because they steal,” and that he knew this because

11   one of them had told him.              By contrast, in his amended

12   statement, he specified that he “did not know the reason for

13   their detention.”        Wei did not compellingly explain this

14   contradiction.

15       Third,      Wei’s      testimony      regarding     post-detention

16   monitoring was contradictory and difficult to follow.               In his

17   amended statement, Wei alleged that, in the week following

18   his release, “the official of the local residential committee

19   visited [his] home daily to see if [he] still attended any

20   house church activities” and “[t]heir monitoring gradually

21   ended after the first week.”           But during his testimony, he


                                        5
 1   claimed that “[e]very week, they came once.             Not every day.”

 2   He also testified that they sometimes came “every other week,”

 3   that he was not sure when they came because sometimes only

 4   his mother was home, and that the visits continued for at

 5   least two weeks.       When asked to explain his testimony, he

 6   asserted that the fact that they stopped “monitoring” him

 7   “[d]id not mean they do not come,” and that, by “monitoring,”

 8   he meant that the residential committee director lived on a

 9   lower floor of his building and noted when he entered and

10   exited the building, but the police came to visit once a week

11   or every other week.         Wei now vaguely argues that the IJ

12   misunderstood his testimony due to a probable translation

13   error having to do with the word “monitoring.”                 But he did

14   not exhaust this argument before the agency.             See Lin Zhong

15   v. U.S. Dep’t of Justice, 480 F.3d 104, 122–24 (2d Cir. 2007)

16   (providing that we generally consider only issues exhausted

17   before   the   BIA).    In   any   event,   when   he    was    given   an

18   opportunity to explain what he meant by “monitoring” during

19   cross-examination, his testimony only became more confusing

20   and contradictory.

21       Fourth, Wei omitted multiple employers in multiple states


                                        6
 1   from his asylum application.                   The agency did not err in

 2   considering       this    inconsistency         because     it    may      rely    on

 3   discrepancies that do not go “to the heart of the applicant’s

 4   claim”     when          evaluating          credibility.              8      U.S.C.

 5   § 1158(b)(1)(B)(iii).

 6       In addition to the above, we defer to the IJ’s demeanor

 7   finding, which is supported by the record and which Wei does

 8   not challenge.       See Jin Chen v. U.S. Dep’t of Justice, 426

 9   F.3d 104, 113 (2d Cir. 2005) (explaining that “IJ’s ability

10   to observe the witness’s demeanor places her in the best

11   position    to     evaluate       whether      apparent     problems        in    the

12   witness’s testimony suggest a lack of credibility or, rather,

13   can be attributed to an innocent cause such as difficulty

14   understanding the question”).

15       It is not clear whether the IJ also relied on testimony

16   surrounding      Wei’s     visa    applications      that        the    she      found

17   implausible, or merely discussed this testimony to note her

18   concern     for     the        record.          In   either        event,         the

19   inconsistencies,         omissions,      and    demeanor     finding        provide

20   ample     support        for    the      agency’s    adverse           credibility

21   determination.       See Xiu Xia Lin, 534 F.3d at 167.                      Because


                                              7
 1   Wei’s claims for asylum, withholding of removal, and CAT

 2   relief all relied on the same discredited testimony, the

 3   credibility determination is dispositive of all forms of

 4   relief.   See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir.

 5   2006).

 6       For the foregoing reasons, the petition for review is

 7   DENIED.   All pending motions and applications are DENIED and

 8   stays VACATED.

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe,
11                               Clerk of Court
12




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