13-2905 Ye v. Sessions BIA Cheng, IJ A099 531 181

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of February, two thousand eighteen.

PRESENT: JON O. NEWMAN, RICHARD C. WESLEY, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

MING X. YE, Petitioner,

v. 13-2905 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Michael Brown, New York, NY.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; David V. Bernal, Assistant Director; Lance L. Jolley, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

Petitioner Ming X. Ye, a native and citizen of the People’s

Republic of China, seeks review of a July 26, 2013 decision of

the BIA affirming a December 1, 2011 decision of an Immigration

Judge (“IJ”) denying Ye’s application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”), and declining to remand for consideration of new

evidence. In re Ming X. Ye, No. A099 531 181 (B.I.A. July 26,

2013), aff’g No. A099 531 181 (Immig. Ct. N.Y. City Dec. 1,

2011). We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

Under the circumstances of this case, we have considered

the decision of the IJ as modified and supplemented by the BIA

(minus the burden finding and including the motion to remand).

See Xue Hong Yang v. U.S. Dep’t of Justice,

(2d Cir. 2005); Yan Chen v. Gonzales,

(2d Cir.

2005). The applicable standards of review are well

established.

(b)(4); Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); Li Yong Cao v. U.S. Dep’t

of Justice,

(2d Cir. 2005).

2 Adverse Credibility Determination

“Considering the totality of the circumstances, . . . a

trier of fact may base a credibility determination on the

demeanor, candor, or responsiveness of the applicant or

witness, . . . the consistency between the applicant’s or

witness’s written and oral statements . . ., the internal

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

such statements with other evidence of record . . . without

regard to whether an inconsistency, inaccuracy, or falsehood

goes to the heart of the applicant’s claim.”

(b)(1)(B)(iii); Xiu Xia Lin,

.

Substantial evidence supports the agency’s determination that

Ye was not credible regarding his claims that he was detained

and beaten in China for participating in an unregistered

Christian church and that he feared future harm in that country

on account of his continued practice of Christianity.

In making the credibility determination, the IJ reasonably

relied on Ye’s demeanor, noting that he was unresponsive

regarding what happened to him after his release from detention

in China and where he resided in the United States. See

(b)(1)(B)(iii); Majidi v. Gonzales,

,

81 n.1 (2d Cir. 2005). The overall credibility determination

is bolstered by inconsistencies in the record related to Ye’s

3 detention, residence, and church attendance. See Li Hua Lin

v. U.S. Dep’t of Justice,

(2d Cir. 2006); see

also Xiu Xia Lin,

. Furthermore, although

basing a credibility finding on an applicant’s lack of doctrinal

knowledge can sometimes be erroneous, it was reasonable for the

agency to do so here. Ye’s inability to testify about

Christmas, which conflicted with his assertions that he had

practiced Christianity for three years and that he had taken

numerous baptismal preparation courses, supported the adverse

credibility determination. See Rizal v. Gonzales,

(2d Cir. 2006) (providing that there may be “instances in

which the nature of an individual applicant’s account would

render his lack of a certain degree of doctrinal knowledge

suspect and could therefore provide substantial evidence in

support of an adverse credibility finding”).

Given these findings, the agency’s adverse credibility

determination is supported by substantial evidence and is

dispositive of Ye’s claims for asylum, withholding of removal,

and CAT relief. See

(b)(1)(B)(iii); Paul v.

Gonzales,

(2d Cir. 2006).

Two aspects of the IJ’s opinion, however, merit further

comment. First, the IJ pointed out that the certificate from

the church in China, which attested to the petitioner’s church

4 attendance, made no mention of his arrest, and that this

“omission” from the author of the church certificate was a

factor bearing on the credibility of the petitioner. Certified

Administrative Record (“CAR”) 113. However, the church

official was asked to certify only the petitioner’s church

attendance. No one asked him to confirm the arrest. The

reasoning makes about as much sense as if we were to doubt the

validity of the IJ’s opinion because it “omitted” any statement

that he had been duly appointed.

Second, the IJ also doubted the petitioner’s credibility

because eight years after the mother’s death, the son showed

the father a death certificate that listed the death as

occurring in May 2001, yet the father’s letter, written three

months after the son’s conversation, says that the death

occurred in April 2001. CAR 114. The IJ provides no

explanation as why a one-month error by the father in reporting

an event occurring eight years earlier provides a basis for

doubting the credibility of the petitioner.

These matters provide no basis for a remand, however,

because the IJ reasonably concluded that the petitioner’s

encounter with the police, though unpleasant, did not rise to

the level of persecution, CAR 168, and because, even if the

petitioner were found credible,

his petition would be

5 denied because his claimed fear of future persecution was not

objectively reasonable. CAR 169-70.

New Evidence

The BIA also did not err in declining to consider the

evidence Ye submitted for the first time on appeal, intended

to explain inconsistencies and demeanor at his initial

proceeding, because he did not file the requisite motion to

remand. See

(d)(3)(iv); In re Fedorenko,

(B.I.A. 1984). Regardless, the BIA

reasonably concluded that Ye’s evidence did not warrant remand.

Motions to remand based on new evidence are governed by the rules

for motions to reopen, and a movant’s failure to proffer

previously unavailable evidence or demonstrate his prima facie

eligibility for relief are permissible grounds for denying a

motion to remand. Li Yong Cao,

.

Evidence of Ye’s grandmother’s illness was available

before the merits hearing, and Ye failed to demonstrate that

this evidence would impact the outcome of his proceedings.

Despite multiple opportunities to explain inconsistencies at

the hearing, neither Ye nor his aunt mentioned that they were

distracted by a family illness, stating instead that they were

nervous. Accordingly, the BIA did not abuse its discretion in

6 declining to consider Ye’s evidence submitted for the first time

on appeal. See

For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

7