18-176 Dong v. Barr BIA Poczter, IJ A208 190 350/352 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 19th day of February, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, Chief Judge, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

YU MEI DONG, JIA ZHANG JIANG, AKA MING KU, Petitioners,

v. 18-176 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Richard Tarzia, Law Office of Richard Tarzia, Belle Mead, NJ.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Anthony C. Payne, Assistant Director; Jennifer A. Bowen, Trial Attorney, Office of Immigration Litigation, United States 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.

Petitioners Yu Mei Dong and Jia Zhang Jiang, natives and

citizens of the People’s Republic of China, seek review of a

January 5, 2018 decision of the BIA affirming a May 10, 2017

decision of an Immigration Judge (“IJ”) denying their

applications for asylum and withholding of removal.1 In re

Yu Mei Dong and Jia Zhang Jiang, No. A 208 190 350/352 (BIA

Jan. 5, 2018), aff’g No. A 208 190 350/352 (Immig. Ct. N.Y.

City May 10, 2017). We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s decisions “for the sake of

completeness.” Wangchuck v. Dep’t of Homeland Sec.,

The IJ also denied Petitioners protection under the Convention Against Torture (“CAT”). The BIA determined that Petitioners had not appealed the portion of the IJ’s decision addressing their CAT claims, and Petitioners do not challenge that holding.

2 524, 528 (2d Cir. 2006). The applicable standards of review

are well established. See

(b)(4)(B); Hong Fei

Gao v. Sessions,

(2d Cir. 2018) (reviewing

adverse credibility determination for substantial evidence).

“Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on” inconsistencies between an applicant’s

statements or between statements and other evidence or

witnesses.

(b)(1)(B)(iii). “We defer . . .

to an IJ’s credibility determination unless . . . it is plain

that no reasonable fact-finder could make such an adverse

credibility ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei Gao,

.

Substantial evidence supports the agency’s adverse

credibility determination.

First, there were several inconsistencies between

Jiang’s testimony and his statements during his credible fear

interview. Jiang’s testimony was inconsistent with his

credible fear interview regarding how many times he attended

church gatherings before he was arrested: at the credible

fear interview he stated he attended four times, but he

3 testified to ten. His testimony was also inconsistent with

his credible fear interview regarding where he attended

church: at the credible fear interview he stated that he

attended gatherings at the home of a friend, Jian Li. But he

testified to the contrary, stating that Jian Li was not a

member of his group. Furthermore, Jiang’s testimony was

inconsistent with the credible fear interview regarding the

date that he was arrested. The IJ was not required to credit

Jiang’s explanation that he was nervous. See Majidi v.

Gonzales,

(2d Cir. 2005) (“A petitioner must

do more than offer a plausible explanation for his

inconsistent statements to secure relief; he must demonstrate

that a reasonable fact-finder would be compelled to credit

his testimony.” (internal quotation marks and citations

omitted)). Nor did the agency err in relying on these

inconsistencies because the record of the credible fear

interview was sufficiently reliable. The officer noted that

he attempted to provide a verbatim record of the interview,

“the proceeding was memorialized in a typewritten document

setting forth the questions put to petitioner as well as h[is]

responses,” the questions were designed to elicit the details

4 of an asylum claim, and Jiang indicated that he understood

the interpreter. See Ming Zhang v. Holder,

(2d Cir. 2009) (holding that interview record may be

considered if it “(1) provides a verbatim account or

transcript of the alien’s statements; (2) was conducted in a

manner designed to elicit the details of an asylum claim; and

(3) contains no indication that the alien was reluctant to

reveal information or did not understand English or the

translations provided by the interpreter.” (internal

quotation marks omitted)).

Second, Dong’s and Jiang’s descriptions of Dong’s

injuries were inconsistent. Jiang testified that after Dong

left detention, she had swelling on the back of her head,

whereas Dong testified that she did not have any swelling.

Even a minor inconsistency between their testimony such as

this bolsters the adverse credibility determination. See Xiu

Xia Lin,

(“[A]n IJ may rely on any

inconsistency . . . as long as the ‘totality of the

circumstances’ establishes that an asylum applicant is not

credible.”).

Finally, Dong and Jiang have not challenged the agency’s

5 finding that their documentary evidence did not rehabilitate

their credibility. See Norton v. Sam’s Club,

(2d Cir. 1998) (“Issues not sufficiently argued in the

briefs are considered waived and normally will not be

addressed on appeal.”). However, even if this argument was

not waived, the agency was justified in determining that Dong

and Jiang’s documentary evidence did not rehabilitate their

credibility. See Biao Yang v. Gonzales,

(2d Cir. 2007) (“An applicant’s failure to corroborate his .

. . testimony may bear on credibility, because the absence of

corroboration in general makes an applicant unable to

rehabilitate testimony that has already been called into

question.”). Documents showing that Dong and Jiang attend

church in the United States did not rehabilitate their claim

of past persecution. Nor did the IJ err in giving diminished

weight to affidavits from individuals in China who were not

subject to cross-examination. See Y.C. v. Holder,

(2d Cir. 2013) (“We generally defer to the agency’s

evaluation of the weight to be afforded an applicant’s

documentary evidence.”);

(deferring to BIA’s

decision declining to credit letter from spouse in China);

6 Matter of H-L-H- & Z-Y-Z-,

(BIA 2010)

(giving diminished weight to letters from relatives because

they were from interested witnesses not subject to cross-

examination), rev’d on other grounds by Hui Lin Huang v.

Holder,

(2d Cir. 2012).

Given the inconsistencies and lack of reliable

corroboration, we find that substantial evidence supports the

adverse credibility determination. See

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

. And

since Dong and Jiang’s claims were all based on the same

factual predicate, the adverse credibility determination is

dispositive of all forms of relief. See Paul v. Gonzales,

(2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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