20-2315 Ye v. Garland BIA Brennan, IJ A206 059 678

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 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 9th day of January, two thousand twenty- 5 three. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 JOHN M. WALKER, JR., 11 ALISON J. NATHAN, 12 Circuit Judges. 13 _____________________________________ 14 15 TIANYIN YE, 16 Petitioner, 17

-2315 19 NAC 20 21 MERRICK B. GARLAND, UNITED 22 STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: John Son Yong, Esq., Law Office 27 of John Yong, New York, NY. 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Zoe J. Heller, 3 Senior Litigation Counsel; Roberta 4 O. Roberts, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a

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

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is DENIED.

13 Petitioner Tianyin Ye, a native and citizen of the

14 People’s Republic of China, seeks review of a July 6, 2020,

15 BIA decision affirming a May 3, 2018, decision of an

16 Immigration Judge (“IJ”) denying his application for asylum,

17 withholding of removal, and relief under the Convention

18 Against Torture (“CAT”). In re Tianyin Ye, No. A206-059-678

19 (B.I.A. July 6, 2020), aff’g No. A206-059-678 (Immig. Ct.

20 N.Y. City May 3, 2018). We assume the parties’ familiarity

21 with the underlying facts and procedural history.

22 Under the circumstances, we have reviewed both the IJ’s

23 and the BIA’s opinions. See Wangchuck v. Dep’t of Homeland

24 Sec.,

(2d Cir. 2006). We review the

25 agency’s adverse credibility determination for substantial

26 evidence, see Hong Fei Gao v. Sessions,

(2d

2 1 Cir. 2018), and “the administrative findings of fact are

2 conclusive unless any reasonable adjudicator would be

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

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

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

6 base a credibility determination on the demeanor, candor, or

7 responsiveness of the applicant or witness, . . . the

8 consistency between the applicant’s or witness’s written and

9 oral statements (whenever made and whether or not under oath,

10 and considering the circumstances under which the statements

11 were made), the internal consistency of each such statement,

12 . . . and any inaccuracies or falsehoods in such statements.”

13 Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s

14 credibility determination unless, from the totality of the

15 circumstances, it is plain that no reasonable fact-finder

16 could make such an adverse credibility ruling.” Xiu Xia Lin

17 v. Mukasey,

(2d Cir. 2008); accord Hong Fei

18 Gao,

. Substantial evidence supports the

19 agency’s determination that Ye was not credible as to his

20 claim that police detained and beat him for practicing

21 Christianity in an unregistered church in China.

22 The agency reasonably relied on the inconsistency between

3 1 Ye’s asylum application and his testimony regarding whether

2 his parents or a friend introduced him to Christianity. See

3

(b)(1)(B)(iii). Ye failed to provide a

4 compelling explanation for the inconsistency, see Majidi v.

5 Gonzales,

(2d Cir. 2005) (“A petitioner must

6 do more than offer a plausible explanation for his

7 inconsistent statements to secure relief; he must demonstrate

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

9 his testimony.” (internal quotation marks omitted)), and he

10 does not challenge the IJ’s finding in his brief, see Zhang

11 v. Gonzales,

, 541 n.1, 545 n.7 (2d Cir. 2005)

12 (recognizing that we generally do not address issues not

13 raised in the briefs).

14 The agency also reasonably found that the striking

15 similarities between Ye’s mother’s and his family friend’s

16 supporting affidavits impugned his credibility. See Mei Chai

17 Ye v. U.S. Dep’t of Just.,

(2d Cir. 2007)

18 (“[T]his court has . . . firmly embraced the commonsensical

19 notion that striking similarities between affidavits are an

20 indication that the statements are ‘canned.’”); Singh v.

21 B.I.A.,

(2d Cir. 2006) (upholding agency’s

22 reliance on “nearly identical language in the written

4 1 affidavits allegedly provided by different people”).

2 Although, as Ye argues, the affidavits are not carbon copies

3 of each other, they are nonetheless strikingly similar

4 because the sentences and paragraphs in the six-paragraph

5 statements mirror each other in content with only slight

6 variations in word choice. Further, the IJ continued

7 proceedings in order for Ye to submit evidence explaining the

8 similarities, but a sample affidavit he purportedly gave his

9 mother and friend provided only generic information to

10 include and thus did not explain the similar structure and

11 content of the affidavits. See Mei Chai Ye,

;

12 see also Majidi,

.

13 The agency also reasonably relied on Ye’s change in

14 demeanor after the concerns with the supporting affidavits

15 were identified. See

(b)(1)(B)(iii); Gao v.

16 Barr,

(2d Cir. 2020) (according “great

17 deference” to IJ’s demeanor findings (internal quotation

18 marks omitted)). That demeanor finding is supported by the

19 record, and Ye does not challenge it in his brief. See Zhang,

20

n.1, 545 n.7.

21 The inconsistency, similarities between the affidavits,

22 and demeanor findings provide substantial evidence for the

5 1 agency’s adverse credibility determination. See 8 U.S.C.

2 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

; Mei Chai

3 Ye,

(concluding that submission of similar

4 affidavits “undermined [applicant’s] general credibility”).

5 The adverse credibility determination is dispositive because

6 asylum, withholding of removal, and CAT relief rest on the

7 same factual predicate. See Paul v. Gonzales,

,

8 156–57 (2d Cir. 2006).

9 For the foregoing reasons, the petition for review is

10 DENIED. All pending motions and applications are DENIED and

11 stays VACATED.

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court

6