Jin Quan Wang v. Holder , 474 F. App'x 808 ( 2012 )

11-2027-ag
Wang v. Holder
BIA
Sichel, IJ
A094 924 441
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of April, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
JIN QUAN WANG,
Petitioner,
v. 11-2027-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
Respondent.
______________________________________
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Anthony P. Nicastro, Senior
Litigation Counsel; Bernard A.
Joseph, Trial Attorney, Office of
Immigration Litigation, Civil
Division, 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.
Petitioner Jin Quan Wang, a native and citizen of
China, seeks review of an April 26, 2011 order of the BIA
affirming the June 11, 2009 decision of an Immigration Judge
(“IJ”) denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Jin Quan Wang, No. A094 924 441 (B.I.A. Apr.
26, 2011), aff’g No. A094 924 441 (Immig. Ct. N.Y.C. June
11, 2009). 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’s decision.
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); Yanqin Weng v. Holder, 562
F.3d 510, 513 (2d Cir. 2009).
The agency concluded that Wang was not credible because
of inconsistencies in his statements regarding when he began
practicing Falun Gong and whether he was arrested in 2000,
2
and because his statement that Falun Gong was a religion
demonstrated his ignorance about Falun Gong. For asylum
applications, such as this one, governed by the REAL ID Act,
the agency may, considering the totality of the
circumstances, base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” and
inconsistencies in his or her statements, without regard to
whether they go “to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii).
As Wang argues, the agency erred in concluding that
Wang’s statement that Falun Gong is a religion undermined
his credibility. It is ambiguous whether Falun Gong is a
religion or not. Compare Jin Chen v. U.S. Dep’t of Justice,
426 F.3d 104, 115 (2d Cir. 2005) (treating Falun Gong as
religion), with Chun Gao v. Gonzales, 424 F.3d 122, 125 (2d
Cir. 2005) (“Falun Gong does not consider itself a religion
and has no clergy or formal places of worship.” (internal
quotation marks omitted)). Although Falun Gong may not hold
itself out as a religion, given the ambiguous status of the
movement, Wang’s description of it as a religion does not
undermine the credibility of his testimony that he practices
Falun Gong. Cf. Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir.
3
2006) (“Both history and common sense make amply clear that
people can identify with a certain religion, notwithstanding
their lack of detailed knowledge about that religion’s
doctrinal tenets, and that those same people can be
persecuted for their religious affiliation.”).
Nevertheless, remand is not necessary because “we can
state with confidence that the IJ would adhere to [her]
decision were the petition remanded,” Xiao Ji Chen v. U.S.
Dep’t of Justice, 434 F.3d 144, 161 (2d Cir. 2006), and
there are “ample, error-free grounds that provide
substantial evidence to support the IJ’s adverse credibility
determination,” Singh v. BIA, 438 F.3d 145, 149 (2d Cir.
2006).
As the IJ found, Wang made inconsistent statements
regarding when he started practicing Falun Gong and whether
he was arrested in 2000. The IJ did not err in rejecting
Wang’s explanation that, while he became involved with Falun
Gong in 1999, he first began to practice it in 2006. Wang’s
testimony was unclear and did not offer a basis for
distinguishing between becoming involved with Falun Gong and
beginning to practice it. See Majidi v. Gonzales, 430 F.3d
77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
4
a plausible explanation for his inconsistent statements to
secure relief; he must demonstrate that a reasonable
fact-finder would be compelled to credit his testimony.”
(emphasis in original; internal quotation marks omitted)).
Similarly, the IJ was not compelled to accept Wang’s
explanation that he did not mention his 2000 arrest either
in his asylum application or during his credible fear
interview because he did not consider it an arrest, when he
testified at his asylum hearing that, in August 2000, he had
been arrested, detained for one day, and beaten. See id.Together, these inconsistencies, which go to the heart
of Wang’s claim, provide substantial evidence for the
agency’s adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Because Wang’s claims for asylum,
withholding of removal, and CAT relief all rely on the same
factual predicate, his practice of Falun Gong and past
treatment as a practitioner, the agency’s adverse
credibility determination forecloses all relief. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5