     18-1652
     Jiang v. Barr
                                                                           BIA
                                                                       Leeds, IJ
                                                                   A205 046 327
                          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 4th day of February, two thousand twenty.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   MIN JIAN JIANG,
14            Petitioner,
15
16                   v.                                  18-1652
17                                                       NAC
18   WILLIAM P. BARR,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 Gerald Karikari, Esq., New York,
24                                   NY.
25
26   FOR RESPONDENT:                 Joseph H. Hunt, Assistant Attorney
27                                   General; Lisa M. Arnold, Senior
28                                   Litigation Counsel; Joseph B.
29                                   Edlow, Trial Attorney, Office of
1                                     Immigration Litigation, United
2                                     States Department of Justice,
3                                     Washington, DC.

4          UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8          Petitioner Min Jian Jiang, a native and citizen of China,

9    seeks review of a May 22, 2018 decision of the BIA affirming

10   a May 22, 2017 decision of an Immigration Judge (“IJ”) denying

11   Jiang’s application for asylum, withholding of removal, and

12   relief under the Convention Against Torture (“CAT”).                In re

13   Min Jian Jiang, No. A 205 046 327 (B.I.A. May 22, 2018), aff’g

14   No. A 205 046 327       (Immig. Ct. N.Y. City May 22, 2017).           We

15   assume the parties’ familiarity with the underlying facts and

16   procedural history.

17         We have reviewed both the IJ’s and the BIA’s decisions

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

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

20   applicable standards of review are well established.                See 8

21   U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d

22   67,   76   (2d   Cir.    2018)    (reviewing    adverse     credibility

23   determination for substantial evidence).


                                         2
1        “Considering the totality of the circumstances, and all

2    relevant factors, a trier of fact may base a credibility

3    determination on the demeanor, candor, or responsiveness of

4    the applicant . . . , the consistency between the applicant’s

5    . . . written and oral statements . . . , the internal

6    consistency of each such statement, [and] the consistency of

7    such statements with other evidence of record . . . without

8    regard to whether an inconsistency, inaccuracy, or falsehood

9    goes to the heart of the applicant’s claim, or any other

10   relevant factor.”      8 U.S.C. § 1158(b)(1)(B)(iii).               “We defer

11   . . . to an IJ’s credibility determination unless, from the

12   totality of the circumstances, it is plain that no reasonable

13   fact-finder could make such an adverse credibility ruling.”

14   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);

15   accord Hong Fei Gao, 891 F.3d at 76.               The agency’s adverse

16   credibility     determination     is        supported    by    substantial

17   evidence.

18       Jiang     does    not   substantively       challenge     the    agency’s

19   demeanor finding and has therefore waived review of that

20   determination.       See Yueqing Zhang v. Gonzales, 426 F.3d 540,

21   541 n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner

22   abandons    issues    and    claims       not   raised   in   his     brief).

                                           3
1    Regardless of waiver, the agency properly considered Jiang’s

2    demeanor to find him not credible because the finding is

3    grounded in the record, and we generally defer to an IJ’s

4    demeanor finding.      See Jin Chen v. U.S. Dep’t of Justice, 426

5    F.3d 104, 113 (2d Cir. 2005) (“We give particular deference

6    to   credibility      determinations   that   are   based    on      the

7    adjudicator’s observation of the applicant’s demeanor, in

8    recognition of the fact that the IJ’s ability to observe the

9    witness’s demeanor places h[im] in the best position to

10   evaluate whether apparent problems in the witness’s testimony

11   suggest a lack of credibility or, rather, can be attributed

12   to an innocent cause such as difficulty understanding the

13   question.”).

14        The IJ found Jiang had “long pauses” when testifying.

15   This finding is supported by the record: when asked why he

16   did not name in his written statement a coworker who was also

17   persecuted, Jiang did not immediately answer, and later, when

18   confronted     with   an   inconsistency   about    when    he     began

19   practicing Falun Gong in a New York park, there was a long

20   pause before Jiang replied. [CAR 119, 163.] Because the record

21   supports the IJ’s demeanor findings, we defer to the agency’s

22   adverse credibility determination in that respect.               See Jin

                                       4
1    Chen, 426 F.3d at 113.

2           The agency also reasonably relied on inconsistencies

3    between Jiang and his friend about when Jiang began practicing

4    Falun Gong in a New York park and how the friends reconnected

5    in New York.         Further, Jiang was internally inconsistent

6    about how many times per week he practiced Falun Gong.                    He

7    did     not      have       compelling      explanations     for       these

8    inconsistencies.          See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

9    Cir. 2005) (“A petitioner must do more than offer a plausible

10   explanation for his inconsistent statements to secure relief;

11   he must demonstrate that a reasonable fact-finder would be

12   compelled to credit his testimony.” (internal quotation marks

13   omitted)).

14          Having     questioned      Jiang’s    credibility,    the    agency

15   reasonably       relied     on    his   failure    to   rehabilitate    his

16   testimony with reliable corroborating evidence.                   See Biao

17   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

18   applicant’s failure to corroborate his or her testimony may

19   bear on credibility, because the absence of corroboration in

20   general makes an applicant unable to rehabilitate testimony

21   that    has     already    been    called   into   question.”).        Jiang

22   submitted undated pictures taken by an unknown photographer

                                             5
1    of Jiang allegedly practicing Falun Gong and protesting the

2    Chinese government in the United States, unsworn statements

3    from a friend in China and his mother, and a notarized

4    affidavit from his witness.           The agency did not err in

5    declining to afford significant weight to these documents

6    because the photographer, the friend, and Jiang’s mother were

7    not available for cross-examination, and his mother was an

8    interested witness.     See Y.C. v. Holder, 741 F.3d 324, 334

9    (2d Cir. 2013) (deferring to agency’s decision to afford

10   little weight to spouse’s letter because it was unsworn and

11   from an interested witness); see also In re H-L-H- & Z-Y-Z-,

12   25 I. & N. Dec. 209, 215 (BIA 2010) (finding that unsworn

13   letters from alien’s friends and family were insufficient to

14   provide substantial support for alien’s claims because they

15   were   from    interested    witnesses    not   subject   to   cross-

16   examination), overruled on other grounds by Hui Lin Huang v.

17   Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).              And Jiang

18   testified inconsistently with his          witness, rendering the

19   witness’s affidavit unreliable.          Jiang did not submit any

20   particularized, objective evidence to support his claim.         See

21   Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d

22   Cir.   2005)    (requiring    “particularized     evidence”    beyond

                                       6
1    general country conditions to support a claim).

2         Accordingly,    given   the    demeanor    finding,   the   record

3    inconsistencies, and the lack of reliable corroboration, the

4    adverse credibility determination is supported by substantial

5    evidence.     See Xiu Xia Lin, 534 F.3d at 165–66.         The adverse

6    credibility     determination      was   dispositive       of    asylum,

7    withholding of removal, and CAT relief because all three forms

8    of   relief   were   based   on    the   same   discredited      factual

9    predicate.     See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d

10   Cir. 2006).

11        For the foregoing reasons, the petition for review is

12   DENIED.   All pending motions and applications are DENIED and

13   stays VACATED.

14                                     FOR THE COURT:
15                                     Catherine O’Hagan Wolfe,
16                                     Clerk of Court




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