He v. Sessions ( 2018 )

16-4074
He v. Sessions
BIA
Sichel, IJ
A200 748 061
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 12th day of July, two thousand eighteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIANG JIAN HE,
14 Petitioner,
15
16 v. 16-4074
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Farah Loftus, Law Office of Farah
24 Loftus, Los Angeles, CA.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Nancy Friedman,
28 Senior Litigation Counsel;
29 Virginia Lum, Attorney, Office of
30 Immigration Litigation, United
1 States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Xiang Jian He, a native and citizen of the
9 People’s Republic of China, seeks review of a November 17,
10 2016 decision of the BIA affirming a January 22, 2016 decision
11 of an Immigration Judge (“IJ”) denying He’s application for
12 asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Xiang Jian He, No.
14 A 200 748 061 (B.I.A. Nov. 17, 2016), aff’g No. A 200 748 061
15 (Immig. Ct. N.Y. City Jan. 22, 2016). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 Under the circumstances of this case, we review both
19 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
20 F.3d 391, 394 (2d Cir. 2005). We review the agency’s
21 adverse credibility determination to assess whether it is
22 supported by substantial evidence. 8 U.S.C.
23 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
24 66 (2d Cir. 2008). The agency may, “[c]onsidering the
2
1 totality of the circumstances,” base an adverse credibility
2 determination on discrepancies between an applicant’s and a
3 witness’s testimony, as well as on internal inconsistencies
4 in an applicant’s testimony. 8 U.S.C. § 1158(b)(1)(B)(iii);
5 Xiu Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
6 credibility determination unless . . . it is plain that no
7 reasonable fact-finder could make such an adverse
8 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. On
9 review of the record, we conclude that substantial evidence
10 supports the agency’s adverse credibility finding, as
11 inconsistencies called into question He’s account of his
12 practice of Christianity as well as of relevant past
13 events.
14 First, the agency reasonably relied on an inconsistency
15 in the testimony presented regarding the place of He’s
16 baptism. 8 U.S.C. § 1158(b)(1)(B)(iii). He asserted that
17 the baptism took place in China in 2008, whereas his pastor
18 in New York testified to having baptized He in December
19 2013 in New York and averred that he would not have
20 baptized someone who had previously been baptized. Although
21 He argues otherwise, this was not a minor inconsistency.
22 The significance of the circumstances of He’s baptism is
3
1 underscored by He’s statement that he did not consider
2 himself a “real Christian” until his baptism in 2008. This
3 inconsistency undermined He’s overall credibility with
4 respect to his statements about his Christianity. See Siewe
5 v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single
6 false document or a single instance of false testimony may
7 (if attributable to the petitioner) infect the balance of
8 the alien’s uncorroborated or unauthenticated evidence.”).
9 He has not offered any explanation for the discrepancy.
10 Second, He and his cousin gave conflicting testimony
11 about whether the two attended church together in New York.
12 This conflict further undermined He’s claim to be a
13 practicing Christian. 8 U.S.C. § 1158(b)(1)(B)(iii). He
14 initially testified that they never attended church
15 together, and confirmed his testimonial statement several
16 times. After He’s cousin testified that they attended
17 church together, however, He changed his testimony. He has
18 not provided a compelling explanation for the inconsistency
19 in his testimony. See Majidi v. Gonzales, 430 F.3d 77, 80
20 (2d Cir. 2005) (“A petitioner must do more than offer a
21 plausible explanation for his inconsistent statements to
22 secure relief; he must demonstrate that a reasonable fact-
4
1 finder would be compelled to credit his testimony.”
2 (quotation marks omitted)).
3 Third, in his adverse credibility finding, the IJ
4 reasonably relied on the inconsistent statements made by He
5 about injuries he allegedly incurred as a result of a 2007
6 detention and beating in China. He’s application mentioned
7 the detention and beating, but did not describe any such
8 injuries. On cross-examination, He affirmed that the
9 beating caused internal injuries and broken bones; but on
10 redirect, He clarified that he suffered only cuts and
11 bruises. This inconsistency relates directly to He’s
12 allegation of past persecution and calls into question the
13 entirety of his claim that he was arrested and beaten for
14 attending an underground church. 8 U.S.C.
15 § 1158(b)(1)(B)(iii); cf. Xian Tuan Ye v. Dep’t of Homeland
16 Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“[A] material
17 inconsistency in an aspect of [an applicant’s] story that
18 served as an example of the very persecution from which he
19 sought asylum . . . afforded substantial evidence to
20 support the adverse credibility finding.”).
21 Considering these discrepancies relating to He’s
22 baptism, church attendance, and injuries, in the totality of
5
1 the circumstances presented, we conclude that substantial
2 evidence supports the agency’s ruling. Siewe, 480 F.3d at
3 170; Xiu Xia Lin, 534 F.3d at 166-67. Because He’s claims
4 were all based on the same factual predicate, the adverse
5 credibility determination is dispositive of asylum,
6 withholding of removal, and CAT relief. Paul v. Gonzales, 444
7 F.3d 148, 156-57 (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,
18 Clerk of Court
6