19-1714 Jia-Tao v. Wilkinson BIA Segal, IJ A206 429 050

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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 2nd day of March, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 SUSAN L. CARNEY, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 WENG JIA-TAO, 14 Petitioner, 15 16 v. 19-1714 17 NAC 18 ROBERT M. WILKINSON, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: John Son Yong, Esq. 24 New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Anthony C. Payne, Assistant 28 Director; Joseph D. Hardy, Trial

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent. 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 DENIED.

10 Petitioner Weng Jia-Tao, a native and citizen of the

11 People’s Republic of China, seeks review of a May 28, 2019,

12 decision of the BIA affirming a January 10, 2018, decision of

13 an Immigration Judge (“IJ”) denying Jia-Tao’s application for

14 asylum, withholding of removal, and relief under the Convention

15 Against Torture (“CAT”). In re Weng Jia-Tao, No. A206 429 050

16 (B.I.A. May 28, 2019), aff’g No. A206 429 050 (Immig. Ct. N.Y.C.

17 Jan. 10, 2018). We assume the parties’ familiarity with the

18 underlying facts and procedural history.

19 Under the circumstances, we have reviewed both the IJ’s and

20 the BIA’s opinions under the substantial evidence standard.

21 See Wangchuck v. DHS,

(2d Cir. 2006); see

22

(b)(4)(B); Hong Fei Gao v. Sessions,

(2d Cir. 2018). “Considering the totality of the

24 circumstances, and all relevant factors, a trier of fact may

25 base a credibility determination on . . . the consistency

26 between the applicant’s or witness’s written and oral 1 statements . . . , the internal consistency of each such

2 statement, [and] the consistency of such statements with other

3 evidence of record . . . without regard to whether an

4 inconsistency, inaccuracy, or falsehood goes to the heart of

5 the applicant’s claim.”

(b)(1)(B)(iii). “We

6 defer . . . to an IJ’s credibility determination unless, from

7 the totality of the circumstances, it is plain that no

8 reasonable fact-finder could make such an adverse credibility

9 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

10 2008); accord Hong Fei Gao,

. Substantial

11 evidence supports the agency’s determination that Jia-Tao was

12 not credible as to his claim that police detained and beat him

13 for practicing Christianity.

14 The IJ reasonably relied on Jia-Tao’s inconsistent

15 statements about how many times he was arrested. See 8 U.S.C.

16 § 1158(b)(1)(B)(iii). Jia-Tao’s statements throughout the

17 proceedings varied as to whether he was arrested once or twice.

18 This inconsistency provides substantial evidence for the

19 adverse credibility determination because it relates to the

20 sole allegation of past persecution. See Xian Tuan Ye v. DHS,

21

(2d Cir. 2006) (holding that “material

22 inconsistency in an aspect of . . . [applicant’s] story that

23 served as an example of the very persecution from which he sought

3 1 asylum . . . afforded substantial evidence to support the

2 adverse credibility finding” (internal quotation marks

3 omitted)). The agency was not required to credit Jia-Tao’s

4 retractions of the inconsistent statements as they did not

5 resolve the inconsistency, which was repeated throughout the

6 proceedings. See Majidi v. Gonzales,

(2d Cir.

7 2005) (“A petitioner must do more than offer a plausible

8 explanation for his inconsistent statements to secure relief;

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

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

11 omitted)).

12 The adverse credibility determination is bolstered by a

13 second inconsistency: his and his wife’s written statements

14 reflected that they began considering him leaving China before

15 his arrest, but he testified and confirmed that they did not

16 discuss him leaving until after his arrest. See Likai Gao v.

17 Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a single

18 inconsistency might preclude an alien from showing that an IJ

19 was compelled to find him credible. Multiple inconsistencies

20 would so preclude even more forcefully.”). The IJ was

21 justified in rejecting Jia-Tao’s varied explanations for this

22 inconsistency. See Majidi,

. The adverse

23 credibility determination is dispositive because asylum,

4 1 withholding of removal, and CAT relief are based on the same

2 factual predicate. See Paul v. Gonzales,

, 156–57

3 (2d Cir. 2006).

4 For the foregoing reasons, the petition for review is

5 DENIED. All pending motions and applications are DENIED and

6 stays VACATED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court

5