Xiu Liang Jiang v. Holder , 383 F. App'x 93 ( 2010 )

09-4124-ag
Jiang v. Holder
BIA
Bukszpan, IJ
A094 787 213
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8 th day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 XIU LIANG JIANG,
14 Petitioner,
15
16 v. 09-4124-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Henry Zhang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; William C. Peachey,
27 Assistant Director; Theo Nickerson,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, 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
4 is DENIED.
5 Xiu Liang Jiang, a native and citizen of the People’s
6 Republic of China, seeks review of a September 11, 2009,
7 order of the BIA reversing the December 20, 2007, decision
8 of Immigration Judge (“IJ”) Joanna M. Bukszpan insofar as it
9 pretermitted Jiang’s asylum application, and affirming her
10 decision denying his applications for withholding of removal
11 and relief under the Convention Against Torture (“CAT”). In
12 re Xiu Liang Jiang, No. A094 787 213 (B.I.A. Sept. 11,
13 2009), aff’g in part No. A094 787 213 (Immig. Ct. N.Y. City
14 Dec. 20, 2007). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Under the circumstances of this case, we review the
17 IJ’s decision as modified and supplemented by the BIA’s
18 decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
19 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d
20 268, 271 (2d Cir. 2005) . The applicable standards of review
21 are well established. See 8 U.S.C. § 1252(b)(4)(B); see also
22 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)
23 (per curiam).
2
1 Substantial evidence supports the IJ’s adverse
2 credibility determination. For asylum applications governed
3 by the REAL ID Act, the agency may, considering the totality
4 of the circumstances, base a credibility finding on an
5 asylum applicant’s “demeanor, candor, or responsiveness,”
6 the plausibility of his or her account, and inconsistencies
7 in his or her statements, without regard to whether they go
8 “to the heart of the applicant’s claim.” 8 U.S.C.
9 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 167.
10 Contrary to Jiang’s argument, the agency did not err in
11 relying on the contents of the form I-213 (Record of
12 Deportable/Inadmissible Alien ) issued after he was detained
13 at the border. As we have found, an I-213 form is
14 “presumptively reliable,” because it “contain[s] guarantees
15 of reliability and trustworthiness that are substantially
16 equivalent” to those required of business records admissible
17 under the Federal Rules of Evidence. Felzcerek v. INS, 75
18 F.3d 112, 116-17 (2d Cir. 1996). In addition, we have
19 examined the reliability of the form I-213 and are confident
20 that it represents a “sufficiently accurate record” of
21 Jiang’s statements to merit consideration in determining
22 whether he was credible. Ramsameachire v. Ashcroft, 357
3
1 F.3d 169, 179 (2d Cir. 2004); see also Ming Zhang v. Holder,
2 585 F.3d 715, 724-25 (2d Cir. 2009). Therefore, the agency
3 reasonably relied on the inconsistency among the form I-213,
4 which stated that Jiang was a Christian, Jiang’s testimony
5 that he was a Buddhist, and his asylum application in which
6 he marked “n/a” in the space left for religion. See Xiu Xia
7 Lin, 534 F.3d at 167. To the extent that Jiang offered
8 explanations for these discrepancies, the IJ was not
9 compelled to credit them. See Majidi v. Gonzales, 430 F.3d
10 77, 80-81 (2d Cir. 2005).
11 Given these discrepancies, the IJ reasonably noted the
12 absence of evidence corroborating Jiang’s claim that he
13 began practicing Falun Gong because he suffered from
14 rheumatoid arthritis, and did not err in concluding that the
15 absence of such evidence further undermined his credibility.
16 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
17 Because Jiang’s claims for asylum, withholding of
18 removal, and CAT relief were all based on the same factual
19 predicate, the adverse credibility determination was fatal
20 to each of those claims. See Paul v. Gonzales, 444 F.3d
21 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
22 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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