Jiangeng Dong v. Sessions ( 2017 )

16-2355
Dong v. Sessions
BIA
Loprest, IJ
A073 001 546
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 27th day of October, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JIANGENG DONG,
14 Petitioner,
15
16 v. 16-2355
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Farah Loftus, Los Angeles, CA.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Rebekah Nahas,
27 Trial Attorney; Judith R.
28 O’Sullivan, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, 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 is
4 DENIED.
5 Petitioner Jiangeng Dong, a native and citizen of the
6 People’s Republic of China, seeks review of a June 10, 2016,
7 decision of the BIA affirming a January 14, 2015, decision of
8 an Immigration Judge (“IJ”) denying Dong’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Jiangeng Dong, No. A073 001 546
11 (B.I.A. June 10, 2016), aff’g No. A073 001 546 (Immig. Ct. N.Y.
12 City Jan. 14, 2015). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed only
15 the agency’s adverse credibility determination. See Xue Hong
16 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522-23 (2d Cir.
17 2005). The standards of review are well established. See 8
18 U.S.C. § 1252(b)(4); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
19 165-66 (2d Cir. 2008).
20 The agency may, “[c]onsidering the totality of the
21 circumstances,” base a credibility finding on an asylum
2
1 applicant’s “demeanor, candor, or responsiveness;” the
2 plausibility of his account; and inconsistencies in his
3 statements and with other record evidence “without regard to
4 whether” those inconsistencies go “to the heart of the
5 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
6 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility
7 determination unless, from the totality of the circumstances,
8 it is plain that no reasonable fact-finder could make such an
9 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
10 Substantial evidence supports the agency’s determination that
11 Dong was not credible.
12 The agency reasonably found that Dong’s credibility was
13 undermined by his late amendment to his asylum statement adding
14 his 1997 altercation with family planning officials. Notably,
15 in July 2007, just over a month after Dong submitted his original
16 asylum application, we ruled that a spouse of an individual
17 forcibly sterilized could not rely solely on that sterilization
18 to carry his or her asylum claims; rather, the spouse had to
19 demonstrate his or her own “resistance to a coercive population
20 control program.” Shi Liang Lin v. U.S. Dep’t of Justice, 494
21 F.3d 296, 309-10 (2d Cir. 2007) (quoting 8 U.S.C.
3
1 § 1101(a)(42)). Therefore, the agency was justified in
2 inferring that Dong amended his asylum statement with a
3 manufactured incident. See Siewe v. Gonzales, 480 F.3d 160,
4 169 (2d Cir. 2007) (deferring to agency inference “[s]o long
5 as an inferential leap is tethered to the evidentiary record”).
6 Contrary to Dong’s argument, his claim that he was beaten
7 violently by family planning officers is not minor, and its
8 omission from his original asylum application is suspect and
9 may alone support the adverse credibility determination. See
10 Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d
11 Cir. 2006) (upholding adverse credibility determination based
12 on material inconsistency relating to past harm that formed
13 basis of the asylum claim); Xiu Xia Lin, 534 F.3d at 166 n.3
14 (“An inconsistency and an omission are, for [credibility]
15 purposes, functionally equivalent.”). Given the more minor
16 details in the lengthy statement, the agency was not required
17 to credit Dong’s explanation that his attorney did not tell him
18 to include the beating. See Majidi v. Gonzales, 430 F.3d 77,
19 80 (2d Cir. 2005) (“A petitioner must do more than offer a
20 plausible explanation for his inconsistent statements to secure
21 relief; he must demonstrate that a reasonable fact-finder would
4
1 be compelled to credit his testimony.” (internal quotation
2 marks omitted)).
3 The adverse credibility determination is further bolstered
4 by the agency’s demeanor finding, to which we defer. See Jin
5 Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005).
6 And Dong did not rehabilitate his testimony with reliable
7 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
8 268, 273 (2d Cir. 2007). The agency reasonably gave diminished
9 weight to documents from Dong’s family members and his church
10 because the drafters were interested witnesses, not available
11 for cross-examination, or both. See Y.C. v. Holder, 741 F.3d
12 324, 334 (2d Cir. 2013); Xiao Ji Chen v. U.S. Dep’t of Justice,
13 471 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
14 afforded to evidence in immigration proceedings “lies largely
15 within the discretion of the IJ” (internal quotation marks
16 omitted)). And although the agency erred in suggesting that
17 Dong needed “a certain degree of doctrinal knowledge” to support
18 his claim of conversion to Christianity, it reasonably
19 determined that he failed to corroborate his claim with a
20 witness from his church. See Rizal v. Gonzales, 442 F.3d 84,
21 90 (2d Cir. 2006); Biao Yang, 496 F.3d at 273. The agency also
5
1 gave diminished weight to the “birth certificates, letters from
2 village cadres, and other documents [that] constitute official
3 documents” because they were not authenticated in accordance
4 with 8 C.F.R. § 1287.6. But the regulation “is not the
5 exclusive means of authenticating records before an immigration
6 judge” and “asylum applicants can not always reasonably be
7 expected to have an authenticated document from an alleged
8 persecutor.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,
9 404 (2d Cir. 2005). As such, the agency erred in giving
10 diminished weight to Dong’s official documents. However, the
11 erroneous ruling was not an essential part of the decision—the
12 IJ stated that Dong’s application was not denied “solely for
13 lack of corroboration,” but rather because of Dong’s lack of
14 credibility.
15 Accordingly, although the agency’s decision was not
16 without flaws, the errors are minor—incorrectly requiring
17 doctrinal knowledge does not excuse Dong’s failure to present
18 a corroborating witness to his Christianity, and the erroneous
19 requirement of authentication applied to only a subset of Dong’s
20 evidence. By comparison, Dong omitted his beating by family
21 planning officers, a major component of his claim of
6
1 persecution, and the IJ’s demeanor finding was supported by
2 specific examples and entitled to particular deference. As
3 such, the evidence “overwhelmingly supports” the IJ’s adverse
4 credibility finding, such that remand would be futile because
5 “there is no realistic possibility of a different result.” See
6 Cao He Lin, 428 F.3d at 395.
7 The adverse credibility determination is dispositive of
8 asylum, withholding of removal, and CAT relief because all three
9 claims are based on the same factual predicate. See Paul v.
10 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
7