Zhen Qiang Yang v. Sessions ( 2017 )

15-4061
Yang v. Sessions
BIA
Rohan, IJ
A089 094 373
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 28th day of March, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 ZHEN QIANG YANG,
14 Petitioner,
15
16 v. 15-4061
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Daniel
27 E. Goldman, Senior Litigation
28 Counsel; Matthew A. Spurlock, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 D.C.
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 Zhen Qiang Yang, a native and citizen of the
6 People’s Republic of China, seeks review of a November 18, 2015,
7 decision of the BIA, affirming a March 11, 2014, decision of
8 an Immigration Judge (“IJ”) denying Yang’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Zhen Qiang Yang, No. A089 094
11 373 (B.I.A. Nov. 18, 2015), aff’g No. A089 094 373 (Immig. Ct.
12 N.Y. City Mar. 11, 2014). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 Because the BIA affirmed the IJ’s decision without opinion,
15 we have reviewed “the IJ’s decision as the final agency
16 determination.” Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d
17 Cir. 2008). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 For asylum applications like Yang’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding on inconsistencies
2
1 between an applicant’s and witness’s statements, “and any
2 inaccuracies or falsehoods in such statements, without regard
3 to whether an inconsistency, inaccuracy, or falsehood goes to
4 the heart of the applicant’s claim, or any other relevant
5 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
6 an IJ’s credibility determination unless, from the totality of
7 the circumstances, it is plain that no reasonable fact-finder
8 could make such an adverse credibility ruling.” Xiu Xia Lin,
9 534 F.3d at 167. “A petitioner must do more than offer a
10 ‘plausible’ explanation for his inconsistent statements to
11 secure relief; ‘he must demonstrate that a reasonable
12 fact-finder would be compelled to credit his testimony.’”
13 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (quoting Zhou
14 Yun Zhang v. INS, 386 F.3d 77, 76 (2d Cir. 2004)). Substantial
15 evidence supports the adverse credibility determination.
16 The agency reasonably relied on inconsistencies concerning
17 Yang’s church attendance in the United States. See 8 U.S.C.
18 § 1158(b)(1)(B)(iii). Yang testified that he attends that
19 Evangelical Mission Church in Manhattan and submitted
20 photographs purporting to show his attendance at that church.
21 Pastor Yang and Pastor Lin, both of the Evangelical Mission
22 Church, were shown the photographs; neither recognized the
3
1 subjects in the photographs. When confronted with this
2 discrepancy, Yang confessed that he had taken some of the
3 photographs at his aunt’s church, not at the Evangelical Mission
4 Church as the text below each picture indicated. The IJ
5 reasonably drew a negative inference from Yang’s explanation
6 of the above discrepancy—that his aunt told him all churches
7 were the same and instructed Yang to “just go to [the Queens]
8 church and take some pictures” for his application—and
9 concluded that this suggested Yang “only attended church in
10 Queens to procure evidence to bolster his” application. See
11 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single
12 false document or a single instance of false testimony may (if
13 attributable to petitioner) infect the balance of the alien’s
14 uncorroborated or unauthenticated evidence.”).
15 Yang concedes that this discrepancy exists, but argues that
16 it does not affect his claim of past persecution in China. He
17 is wrong. This inconsistency concerned an issue central to
18 Yang’s asylum claim, that is, whether or not he is (or was) a
19 practicing Christian. Thus, even alone, it provided
20 substantial evidence to support the adverse credibility
21 determination. Cf. Xian Tuan Ye v. Dep’t of Homeland Sec., 446
22 F.3d 289, 295 (2d Cir. 2006); see also Siewe, 480 F.3d at 170.
4
1 Nor was the agency compelled to accept his explanation that he
2 believed the Evangelical Mission Church (in Manhattan) and his
3 aunt’s church (in Queens) were the same: his explanation does
4 not resolve why the photographs of different structures are all
5 labeled “Evangelical Mission Church” or why he maintained that
6 he attended the Evangelical Mission Church until Pastor Yang
7 testified to the contrary. See Majidi, 430 F.3d at 80.
8 Yang also generally challenges the adverse credibility
9 determination on the basis that the inconsistencies do not go
10 to the heart of his claim. However, his argument is misplaced
11 for two reasons. As discussed above, the inconsistencies are
12 material. And he incorrectly relies on pre-REAL ID Act
13 precedent. Under the REAL ID Act, which governs Yang’s case,
14 “an IJ may rely on any inconsistency or omission in making an
15 adverse credibility determination,” where, as here, “the
16 ‘totality of the circumstances’ establishes that an asylum
17 applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167
18 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).
19 We note that the IJ made misstatements regarding Yang’s
20 efforts to procure church witnesses to testify on his behalf.
21 The IJ found an inconsistency between Yang’s December 2011
22 testimony that he had “spoke[n] to Pastor Lin” at the
5
1 Evangelical Mission Church about testifying, and Pastor Lin’s
2 testimony in June 2012 that Yang had not been to the Evangelical
3 Mission Church since June 2011. But Yang mentioned two
4 different Pastor Lins and the record is unclear which pastor
5 he initially asked to testify. The IJ also found an
6 inconsistency between Yang’s December 2011 testimony that
7 Pastor Yang refused to testify or submit a letter, and Pastor
8 Yang’s June 2012 testimony “that he had not seen [Yang] since
9 [his] baptism in 2008”; the transcript of the December 2011
10 hearing makes no mention of Pastor Yang or of this alleged
11 conversation. What is clear despite these errors is that Yang
12 did not know where the Evangelical Mission Church was located
13 when he said, in December 2011, that he asked the pastors to
14 testify. Accordingly, despite the IJ’s misstatements, the
15 ultimate conclusion that Yang could not have approached anyone
16 at the Manhattan church in the month before the December 2011
17 hearing, is supported by the record. We conclude, moreover,
18 not only that the totality of the circumstances supports the
19 adverse credibility determination, but that remand to correct
20 the minor errors would be futile. See Lianping Li v. Lynch,
21 839 F.3d 144, 149 (2d Cir. 2016).
6
1 The inconsistencies, which call into question whether Yang
2 is a practicing Christian and thereby undermine his credibility
3 as to both past harm on that basis and his alleged fear of future
4 harm, are dispositive of asylum, withholding of removal, and
5 CAT relief because all three forms of relief are based on the
6 same factual predicate. Paul v. Gonzales, 444 F.3d 148, 156-57
7 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
7