Chang Ming Jiang v. Holder ( 2013 )

12-686
Jiang v. Holder
BIA
Cheng, IJ
A097 543 001
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of August, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
JOHN M. WALKER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
CHANG MING JIANG,
Petitioner,
v. 12-686
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Zhong Yue Zhang, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Alison Marie Igoe,
Senior Counsel; Lyle D. Jentzer,
Senior Counsel; Kathleen E.
Imbriglia, Legal Intern, National
Security Unit, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Chang Ming Jiang, a native and citizen of the People’s
Republic of China, seeks review of a January 30, 2012,
decision of the BIA affirming the April 29, 2010, decision
of Immigration Judge (“IJ”) Mary M. Cheng, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Chang
Ming Jiang, No. A097 543 001 (B.I.A. Jan. 30, 2012), aff’g
No. A097 543 001 (Immig. Ct. N.Y. City Apr. 29, 2010). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
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For asylum applications, like Jiang’s, governed by the
amendments made to the Immigration and Nationality Act by
the REAL ID Act of 2005, the agency may, considering the
totality of the circumstances, base a credibility finding on
an asylum applicant’s “demeanor, candor, or responsiveness,”
the plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart
of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008). Furthermore, for purposes of a credibility
determination, “[a]n inconsistency and an omission are . . .
functionally equivalent.” Xiu Xia Lin, 534 F.3d at 166. We
“defer to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no
reasonable fact-finder could make” such a ruling. Id. at
167. In this case, the agency reasonably based its adverse
credibility determination on Jiang’s omissions and demeanor.
In his sworn border patrol interview, Jiang did not
mention that he left China, or feared returning to China,
because of his Christian faith or membership in an
underground church, despite being asked why he came to the
United States, whether he feared returning to China, and why
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he feared returning to China. It was not until his credible
fear interview, two weeks later, that he stated that he left
China to “avoid persecution” by the Chinese government
“[b]ecause [he was] Christian and [] belonged to an
underground church.” When discrepancies arise from an
applicant’s statements in a border or credible fear
interview, we closely examine the record of the interview to
ensure that it represents a “sufficiently accurate record”
of the applicant’s statements to merit consideration in
determining whether the applicant is credible. Ming Zhang
v. Holder, 585 F.3d 715, 723-25 (2d Cir. 2009);
Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004).
Here, the record of the border interview bears considerable
indicia of reliability, as it provides a verbatim account of
Jiang’s statements, the questions regarding his fear of
return were clearly designed to elicit the details of an
asylum claim, the interview was translated by a Chinese
interpreter, and Jiang stated at the beginning of the
interview that he understood what the border patrol officer
was saying, and gave no later indication that he could not
understand or was confused. See Ramsameachire, 357 F.3d at
179-80.
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When asked during his testimony why he omitted any
mention of his Christian faith during the border patrol
interview, Jiang stated that it was “because the first time
I went in there, I did not know” and because the border
agent “said he w[ould] not send me back.” The agency
reasonably declined to credit this explanation as not
“plausible . . . or reasonable.” See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005). In Jiang’s brief to the
BIA he argued that his response to the question regarding
why he feared returning to China was “reasonable under the
circumstances” because he left China illegally as a result
of his participation in an underground Christian church.
While the BIA may have erred in not addressing or
considering this explanation, remand would be futile because
those statements were made by Jiang’s attorney, and are not
supported by an affidavit or any other evidence from Jiang.
See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395
(2d Cir. 2005); INS v. Phinpathya, 446 U.S. 183, 188-89 n.6
(1984); see also Majidi, 430 F.3d at 80-81.
Because the REAL ID Act permits the agency to base a
credibility finding on any inconsistency, without regard to
whether it goes “to the heart of the applicant’s claim,”
8 U.S.C. § 1158(b)(1)(B)(iii), Jiang’s omission from his
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border patrol interview provides substantial evidence
supporting the agency’s adverse credibility determination.
See Xiu Xia Lin, 534 F.3d at 166, 167. The adverse
credibility determination is further supported by the IJ’s
demeanor finding. The IJ noted that Jiang’s responses to
questions were “non-responsive, evasive and rehearsed” and
that additionally Jiang was “very hesitant” in answering
questions. Because the IJ was in the best position to
observe Jiang’s manner while testifying, we afford the
demeanor finding particular deference. See Tu Lin v.
Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).
Given these findings, we conclude that the totality of
the circumstances supports the agency’s adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167. Because the only evidence of a threat
to Jiang’s life or freedom depended upon his credibility,
the adverse credibility finding necessarily precludes
success on his claims for asylum, withholding of removal,
and CAT relief, and we need not reach the agency’s
alternative conclusion that Jiang failed to demonstrate a
well-founded fear of persecution. See Paul v. Gonzales, 444
F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 523 (2d Cir. 2005).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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