20-698 Feng v. Garland BIA Poczter, IJ A202 022 155 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 15th day of March, two thousand twenty-two. 5 6 PRESENT: 7 ROBERT D. SACK, 8 BETH ROBINSON, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 CHEN FENG, 14 Petitioner, 15 16 v. 20-698 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Richard Tarzia, Esq., Belle Mead, 24 NJ. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Mary 28 Jane Candaux, Assistant Director, 1 Rachel P. Berman-Vaporis, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.

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

9 is DENIED.

10 Petitioner Chen Feng, a native and citizen of the

11 People’s Republic of China, seeks review of a February 5,

12 2020, decision of the BIA, which denied his motion to reopen

13 and terminate his removal proceedings and affirmed a March

14 14, 2018, decision of an Immigration Judge (“IJ”) denying his

15 application for asylum, withholding of removal, and

16 protection under the Convention Against Torture (“CAT”). In

17 re Chen Feng, No. A202 022 155 (B.I.A. Feb. 5, 2020), aff’g

18 No. A202 022 155 (Immig. Ct. N.Y. City Mar. 14, 2018). We

19 assume the parties’ familiarity with the underlying facts and

20 procedural history.

21 We have reviewed the IJ’s decision as modified and

22 supplemented by the BIA, considering only the BIA’s ruling on

23 Feng’s motion to reopen and terminate and the adverse

2 1 credibility determination. See Xue Hong Yang v. U.S. Dep’t

2 of Justice,

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

3 Gonzales,

(2d Cir. 2005). As an initial

4 matter, the challenge to the agency’s jurisdiction that Feng

5 raised in his motion to reopen and terminate is foreclosed by

6 our caselaw. He argued that his notice to appear (“NTA”) was

7 insufficient to vest jurisdiction with the IJ because it

8 omitted the hearing date. However, “an NTA that omits

9 information regarding the time and date of the initial removal

10 hearing is . . . adequate to vest jurisdiction in the

11 Immigration Court” where, as here, “a notice of hearing

12 specifying this information is later sent to the alien.”

13 Banegas Gomez v. Barr,

(2d Cir. 2019); see

14 also Chery v. Garland,

, 987 (2d Cir. 2021)

15 (holding that “Banegas Gomez remains good law even after the

16 Supreme Court’s opinion in Niz-Chavez [v. Garland,

1474 (2021)]”).

18 We review adverse credibility determinations for

19 substantial evidence, see Hong Fei Gao v. Sessions,

(2d Cir. 2018), and treat the agency’s findings of

21 fact as “conclusive unless any reasonable adjudicator would

3 1 be compelled to conclude to the contrary,” 8 U.S.C.

2 § 1252(b)(4)(B). “Considering the totality of the

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

4 base a credibility determination on” inconsistencies within

5 and between an applicant’s statements “without regard to

6 whether” they go “to the heart of the applicant’s claim, or

7 any other relevant factor.”

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

8 “We defer . . . to an IJ’s credibility determination unless,

9 from the totality of the circumstances, it is plain that no

10 reasonable fact-finder could make such an adverse credibility

11 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

12 2008); accord Hong Fei Gao,

. Substantial

13 evidence supports the adverse credibility determination.

14 The agency reasonably relied on Feng’s omissions and

15 inconsistencies. He omitted from his written statements and

16 asylum interview that, following his second arrest for

17 attending an underground Christian church, he argued with

18 police officers, and they choked him. The agency could

19 reasonably conclude that these are details that he could be

20 expected to reveal because his earlier statements contained

21 other details of abuse by the police. See Hong Fei Gao, 891

4 1 F.3d at 78–79 (“[I]n assessing the probative value of the

2 omission of certain facts, an IJ should consider whether those

3 facts are ones that a credible petitioner would reasonably

4 have been expected to disclose under the relevant

5 circumstances.”).

6 The agency also reasonably relied on inconsistencies

7 about whether Feng continued to attend church in China

8 following his arrests. Feng testified that he continued to

9 attend services but said in his original and amended

10 statements that he “was afraid to attend anymore” following

11 his second arrest. “The Court generally will not disturb

12 adverse credibility determinations that are based on specific

13 examples in the record of inconsistent statements . . . about

14 matters material to [an applicant’s] claim of persecution, or

15 on contradictory evidence or inherently improbable testimony

16 regarding such matters.” Wensheng Yan v. Mukasey,

63, 66 (2d Cir. 2007) (quotation marks omitted).

18 Given the omissions and inconsistences, the agency also

19 reasonably relied on Feng’s lack of corroboration in finding

20 that his claim lacked credibility. See Biao Yang v. Gonzales,

21

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

5 1 corroborate his or her testimony may bear on credibility,

2 because the absence of corroboration in general makes an

3 applicant unable to rehabilitate testimony that has already

4 been called into question.”). A letter from Feng’s mother

5 did not confirm details of the alleged beating, a certificate

6 from Feng’s church in China confirmed his membership but did

7 not address the alleged persecution, and neither document

8 addressed Feng’s church attendance.

9 Given the omissions and inconsistencies in Feng’s

10 statements and his failure to rehabilitate his testimony with

11 other evidence, substantial evidence supports the agency’s

12 adverse credibility determination. See 8 U.S.C.

13 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167–68; Biao

14 Yang,

. The adverse credibility determination

15 is dispositive of asylum and withholding of removal. 1 See

16 Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

17

1 We find it unnecessary to reach the Government’s argument that Feng waived his CAT claim. 6 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court

7