17-545 Wang v. Sessions BIA Loprest, IJ A205 433 910 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 5th day of July, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PIERRE N. LEVAL, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 XU WANG, 14 Petitioner, 15 16 v. 17-545 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New 24 York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Holly M. Smith, 28 Senior Litigation Counsel; Jesse 29 Lloyd Busen, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 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 Xu Wang, a native and citizen of the People’s

10 Republic of China, seeks review of a January 26, 2017 decision

11 of the BIA affirming a December 15, 2015 decision of an

12 Immigration Judge (“IJ”) denying Wang’s application for

13 asylum, withholding of removal, and relief under the

14 Convention Against Torture (“CAT”). In re Xu Wang, No. A 205

15 433 910 (B.I.A. Jan. 26, 2017), aff’g No. A 205 433 910

16 (Immig. Ct. N.Y. City Dec. 15, 2015). We assume the parties’

17 familiarity with the underlying facts and procedural history

18 in this case.

19 We have reviewed the decisions of both the IJ and the

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

21 Homeland Sec.,

(2d Cir. 2006). The

22 applicable standards of review are well established. See

23

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

2 1 162, 165-66 (2d Cir. 2008). The agency may, “[c]onsidering

2 the totality of the circumstances, . . . base a credibility

3 determination on the demeanor, candor, or responsiveness of

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

5 or witness’s written and oral statements[,] . . . the internal

6 consistency of each such statement, the consistency of such

7 statements with other evidence of record . . . and any

8 inaccuracies or falsehoods in such statements,” or “any other

9 relevant factor.”

(b)(1)(B)(iii); see also

10 Xiu Xia Lin,

. “We defer . . . to an IJ’s

11 credibility determination unless . . . it is plain that no

12 reasonable fact-finder could make such an adverse credibility

13 ruling.” Xiu Xia Lin,

. Substantial evidence

14 supports the agency’s determination that Wang was not

15 credible.

16 The agency reasonably relied on inconsistencies within

17 Wang’s testimony and discrepancies between his testimony and

18 documentary evidence.

(b)(1)(B)(iii). Wang

19 testified that, during his detention, he sustained injuries

20 to his left hand, left ring finger, and left bicep; he denied

21 any injuries to his left elbow. On further questioning, 3 1 however, he changed his answer to match the medical report,

2 which reflected injuries to his left elbow and left middle

3 finger. His responses also conflicted with his asylum

4 application, which suggested that he had sustained injuries

5 to more than one finger. When asked to show which finger was

6 injured, he hesitated before raising his right hand, not his

7 left, and isolating his right ring finger. These

8 inconsistencies alone provide substantial support for the

9 adverse credibility determination and completely undermine

10 Wang’s credibility about his alleged persecution. See Xian

11 Tuan Ye v. Dep’t of Homeland Sec.,

(2d Cir.

12 2006) (holding that material inconsistency relating to

13 central aspect of asylum claim provided substantial evidence

14 for adverse credibility determination). The IJ was not

15 required to accept Wang’s explanation that his left arm was

16 hurt more than his right arm, because it did not explain why

17 he identified his right hand as the one injured or resolve

18 his differing descriptions of his injuries. See Majidi v.

19 Gonzales,

(2d Cir. 2005) (“A petitioner must

20 do more than offer a plausible explanation for his

21 inconsistent statements to secure relief; he must demonstrate 4 1 that a reasonable fact-finder would be compelled to credit

2 his testimony.” (quotation marks omitted) (emphasis in

3 original)).

4 Moreover, the agency’s demeanor finding—to which we

5 defer—bolsters the adverse credibility determination. 8

(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of

7 Justice,

(2d Cir. 2006). The record supports

8 the IJ’s conclusion that Wang’s demeanor shifted on cross-

9 examination, in that he gave unresponsive replies to

10 questions about how he knew to report to the police after his

11 release from his detention and about how many times the police

12 visited his home in China after his release. See Xusheng Shi

13 v. BIA,

(2d Cir. 2004) (upholding IJ’s finding

14 that generalized or non-responsive answers reflected

15 memorized script); Shu Wen Sun v. BIA,

(2d

16 Cir. 2007) (finding applicant was unresponsive in manner

17 suggesting evasiveness, rather than nervousness or difficulty

18 comprehending proceedings).

19 Finally, the agency reasonably found that Wang failed to

20 rehabilitate his testimony with reliable corroborating

21 evidence. “An applicant’s failure to corroborate his or her 5 1 testimony may bear on credibility, because the absence of

2 corroboration in general makes an applicant unable to

3 rehabilitate testimony that has already been called into

4 question.” Biao Yang v. Gonzales,

(2d Cir.

5 2007). As the IJ found, Wang failed to corroborate his

6 practice of Christianity in the United States by submitting

7 a letter from the U.S. church where he was baptized. The IJ

8 was not required to accept Wang’s explanation that he lost

9 the letter because it does not resolve why he did not ask for

10 another copy or a new letter. See Majidi,

.

11 Moreover, although Wang submitted letters from his mother and

12 a fellow churchgoer to corroborate his practice of

13 Christianity and past persecution in China, the letters were

14 unsworn statements prepared for the purpose of litigation by

15 parties, at least one of whom—his mother—was an interested

16 witness, not subject to cross examination. See Y.C. v.

17 Holder,

(2d Cir. 2013) (deferring to

18 agency’s decision to give limited weight to letter from

19 applicant’s spouse in China). And the IJ was not compelled

20 to credit the letters because they could not resolve the

21 credibility issues in Wang’s own testimony, particularly 6 1 regarding his injuries. Biao Yang,

.

2 Given the inconsistent testimony, demeanor issues, and

3 the absence of corroborating evidence independent of Wang’s

4 own credibility, the adverse credibility determination is

5 supported by substantial evidence. See 8 U.S.C.

6 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

. The

7 adverse credibility determination is dispositive of asylum,

8 withholding of removal, and CAT relief because all three

9 claims rely on Wang’s credibility. See Paul v. Gonzales, 444

(2d Cir. 2006).

11 For the foregoing reasons, the petition for review is

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

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

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

15 is DISMISSED as moot. Any pending request for oral argument

16 in this petition is DENIED in accordance with Federal Rule of

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

18 34.1(b).

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court

7