17-1099 Jiang v. Sessions BIA Segal, IJ A206 059 971 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 18th day of September, two thousand 5 eighteen. 6 7 PRESENT: 8 RALPH K. WINTER, 9 GUIDO CALABRESI, 10 JOSÉ A. CABRANES, 11 Circuit Judges. 12 _____________________________________ 13 FEI JIANG, 14 Petitioner, 15 16 v. 17-1099 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael Brown, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Briena L. 27 Strippoli, Senior Litigation 28 Counsel; Jenny C. Lee, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 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 Fei Jiang, a native and citizen of China,

6 seeks review of an April 7, 2017, decision of the BIA

7 affirming a February 24, 2016, decision of an Immigration

8 Judge (“IJ”) denying Jiang’s application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Fei Jiang, No. A 206 059 971

11 (B.I.A. Apr. 7, 2017), aff’g No. A 206 059 971 (Immig. Ct.

12 N.Y. City Feb. 24, 2016). We assume the parties’ familiarity

13 with the underlying facts and procedural history in this case.

14 We have reviewed both the BIA’s and the IJ’s decisions.

15 Zaman v. Mukasey,

(2d Cir. 2008). We

16 review the adverse credibility determination under the

17 substantial evidence standard. See 8 U.S.C.

18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,

, 165-

19 66 (2d Cir. 2008). “Considering the totality of the

20 circumstances, . . . a trier of fact may base a credibility

21 determination on the demeanor, candor, or responsiveness of

22 the applicant . . . , the consistency between the 2 1 applicant’s or witness’s written and oral statements . . .

2 , the internal consistency of each such statement, the

3 consistency of such statements with other evidence of

4 record . . . , and any inaccuracies or falsehoods in such

5 statements, . . . or any other relevant factor.” 8 U.S.C.

6 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin,

163-64. “We defer . . . to an IJ’s credibility

8 determination unless . . . it is plain that no reasonable

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

10 Xiu Xia Lin,

. Substantial evidence

11 supports the agency’s determination that Jiang was not

12 credible.

13 Jiang testified that he was arrested at a church

14 gathering in September 2011 and escaped from a gathering that

15 was broken up by authorities in June 2012. But, as the IJ

16 found, the November 2015 statement from Jiang’s church in

17 China stated only that Jiang participated in church

18 activities in April 2011. The IJ reasonably relied on the

19 inconsistency between Jiang’s testimony and the letter,

20 particularly as he testified that the priest who authored the

21 letter was aware of Jiang’s participation in 2012 and the

22 priest was present at the 2012 raid on the church. Given 3 1 that Jiang’s arrest and continued practice was the sole basis

2 of his claim, this inconsistency provides substantial support

3 for the adverse credibility determination.

at 166-67

4 (explaining that “an IJ may rely on any inconsistency or

5 omission” and upholding reliance on omissions and

6 inconsistencies stemming from corroborating letters); Xian

7 Tuan Ye v. Dep’t of Homeland Sec.,

(2d Cir.

8 2006) (“[A] material inconsistency in an aspect of [the

9 applicant]’s story that served as an example of the very

10 persecution from which he sought asylum” affords “substantial

11 evidence to support the adverse credibility finding.”

12 (internal quotations omitted)); Ming Zhang v. Holder, 585

, 726 (2d Cir. 2009) (“Omissions that go to a heart

14 of an applicant’s claim can form the basis for an adverse

15 credibility determination.” (brackets, quotation marks, and

16 citation omitted)); cf. Hong Fei Gao v. Sessions,

(2d Cir. 2018) (“A trivial inconsistency or omission

18 that has no tendency to suggest a petitioner fabricated his

19 or her claim will not support an adverse credibility

20 determination.”).

21 Jiang explained that the letter did not reflect the full

22 period of his church attendance because sometimes the priest 4 1 was not there, and other times, the activities and gatherings

2 were not reported to the “sponsoring church.” The IJ was not

3 required to accept these explanations because Jiang also

4 testified that the priest did attend the June 2012 gathering

5 that was broken up by authorities and Jiang was unable to

6 explain what the sponsoring church was. See Majidi v.

7 Gonzales,

(2d Cir. 2005) (“A petitioner must

8 do more than offer a plausible explanation for his

9 inconsistent statements to secure relief; he must demonstrate

10 that a reasonable fact-finder would be compelled to credit

11 his testimony.” (internal quotation marks and citations

12 omitted)). Similarly, Jiang speculated that the friend who

13 obtained the letter for him neglected to mention to the priest

14 that Jiang was present in June 2012. But the IJ did not have

15 to accept that explanation because Jiang also testified that

16 the certificate was not based solely on information that he

17 provided to his friend.

18 Jiang also argues that he did not have an opportunity to

19 elaborate on some of his explanations. This argument is

20 belied by the record. The IJ asked several clarifying

21 questions, to which Jiang provided nonresponsive answers. As

22 noted above, when asked to clarify what he meant by a 5 1 “sponsoring church,” Jiang was first unresponsive, then

2 conceded that he did not know what the sponsoring church was.

3 Although Jiang argues that his “ignorance” regarding the

4 sponsoring church is reasonable because underground church

5 activities are loosely organized, he did not explain this to

6 the IJ, who was permitted to infer that Jiang was generally

7 unfamiliar with underground churches. See Wensheng Yan v.

8 Mukasey,

(2d Cir. 2007) (holding that, so

9 long as IJ’s finding is “tethered to record evidence, and

10 there is nothing else in the record from which a firm

11 conviction of error could properly be derived,” we will not

12 disturb that finding); Siewe v. Gonzales,

, 169

13 (2d Cir. 2007) (“So long as an inferential leap is tethered

14 to the evidentiary record, we will accord deference to the

15 finding”).

16 The IJ also reasonably relied on Jiang’s failure to

17 submit reasonably available corroborating evidence. See Biao

18 Yang v. Gonzales,

(2d Cir. 2007) (holding

19 that asylum applicant’s failure to corroborate his testimony

20 may bear on his credibility, “because the absence of

21 corroboration in general makes an applicant unable to

22 rehabilitate testimony that has already been called into 6 1 question.”). The record contains little evidence that Jiang

2 practices Catholicism: the letter from China did not confirm

3 his practice after 2011 and Jiang’s only letter regarding his

4 practice in the United States predated his hearing by more

5 than two years. See

(b)(1)(B)(ii); Biao Yang,

6

. Jiang’s additional evidence was untimely.

7 The IJ was not required to credit Jiang’s explanation that he

8 forgot to bring the documents to his attorney’s office:

9 because the documents were dated April 2014, Jiang had almost

10 two years to submit them, but failed to file them until the

11 day of the hearing. See Majidi,

.

12 Given the inconsistency regarding past events in China,

13 Jiang’s unresponsive testimony, and his lack of reliable

14 corroboration, the totality of the circumstances supports

15 the adverse credibility determination. See 8 U.S.C.

16 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

. The

17 adverse credibility determination is dispositive of asylum,

18 withholding of removal, and CAT relief because all three

19 claims rely on Jiang’s credibility. See Paul v. Gonzales,

20

(2d Cir. 2006). We do not reach the

21 alternative finding that Jiang failed to establish a well-

22 founded fear of future persecution because the adverse 7 1 credibility determination is dispositive of Jiang’s claims.

2 INS v. Bagamasbad,

(1976) (“As a general

3 rule courts and agencies are not required to make findings

4 on issues the decision of which is unnecessary to the

5 results they reach.”).

6 For the foregoing reasons, the petition for review is

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

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

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

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

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

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

13 34.1(b).

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

8