Xiu Ying Jiang v. Lynch , 674 F. App'x 61 ( 2017 )

15-1364
Jiang v. Lynch
BIA
Poczter, IJ
A205 303 602
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.
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
5th day of January, two thousand seventeen.
PRESENT:
RALPH K. WINTER,
PETER W. HALL,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
XIU YING JIANG,
Petitioner,
v. 15-1364
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Stuart Altman, New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal
Assistant Attorney General; Justin
Markel, Senior Litigation Counsel;
Margaret A. O’Donnell, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 Xiu Ying Jiang, a native and citizen of China,
seeks review of a March 26, 2015 decision of the BIA affirming
an August 23, 2013 decision of an Immigration Judge (“IJ”)
denying Jiang’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Xiu Ying Jiang, No. A205 303 602 (B.I.A. Mar. 26, 2016), aff’g
No. A205 303 602 (Immig. Ct. N.Y. City Aug. 23, 2013). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We have reviewed both the IJ’s and the BIA’s opinions.
Yun-Zui Guan v. Gonzales, 432 F.3d 391, 395 (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).
Under the REAL ID Act of 2005, the agency may, in light of
“the totality of the circumstances,” base an adverse
credibility determination on an applicant’s “demeanor, candor,
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or responsiveness,” the plausibility of her account, and
inconsistencies in her statements, “without regard to whether”
those inconsistencies go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 166 (2d Cir. 2008). Under the “substantial
evidence” standard of review, “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 an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
at 166.
The IJ’s adverse credibility determination against Jiang
is sound. The IJ reasonably relied on internal inconsistencies
within Jiang’s testimony and between her testimony and her
documentary evidence. For example, Jiang testified that after
her friend was released from detention, she spent four days on
a hunger strike and then was herself released on August 5. But
she also testified that she stopped eating in mid-July, which
would put her release date much earlier. Jiang denies that she
specified when she began her hunger strike or that it began
immediately after her friend’s release. But that denial is
belied by the record: she testified that she stopped eating in
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mid-July, “at the time when my church member was released.”
The IJ cited Jiang’s failure to mention her time in hiding
on her asylum application, despite her testimony that, after
the police searched her house in October 2011, she hid at a
friend’s house for about five days and then fled China. As a
general matter, “asylum applicants are not required to list
every incident of persecution on their I-589 statements.”
Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006). But according
to Jiang’s testimony, her time in hiding immediately preceded
her hastened departure from China, and in fact was the reason
she left. The IJ was entitled to rely on this omission in
deeming Jiang’s testimony not credible: as we have observed,
“[a]n inconsistency and an omission are, for these purposes,
functionally equivalent.” Xiu Xia Lin, 534 F.3d at 166 n.3;
see id. at 167 (holding that petitioner’s failure to disclose
the length of his detention in his asylum application was a
proper basis for the IJ’s adverse credibility determination).
Jiang presses her explanation for the omission: she wanted to
protect the friend who housed her. But Jiang testified to her
friend’s name at the merits hearing, and she could have omitted
any identifying information in her application, making this
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explanation implausible. Majidi v. Gonzales, 430 F.3d 77, 80
(2d Cir. 2005) (explaining that the agency is not required to
credit an explanation that is merely plausible or possible).
The IJ noted another discrepancy between Jiang’s testimony
and her documentary evidence: Jiang testified that she and her
friend were arrested together in both April and June, but the
friend’s statement said nothing about their June detention.
Jiang professed not to know the reason for this omission.
The IJ cited several other inconsistencies in Jiang’s
testimony. When asked how many fellow church members were
arrested in April 2011, she responded “Twelve; eight plus me
and Jing, Chun Ying.” On cross-examination, Jiang said, “[M]e
and Jing Chun Ying, eight” were arrested. Similar confusion
arose when she was asked how many police officers raided the
church in April 2011: Jiang first responded 10, but on
cross-examination changed that response to 12. Jiang posits
that these arithmetic discrepancies are rooted in the
Government attorney’s confusion over whether the figures
included her and her friend, and claims that she always said
that 8 parishioners were arrested by 12 officers. Again, the
IJ was not compelled to accept this explanation, Majidi, 430
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F.3d at 80; moreover, Jiang never testified that she was
including herself and her friend in the figure, and her
“attorney’s unsworn statements in [her] brief are not
evidence,” Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009).
Finally, the IJ cited Jiang’s confusing testimony about how
she traveled from Malaysia to the United States. On
cross-examination, Jiang testified that after hiding in Iran,
she traveled to Greece. When asked how she made that trek,
Jiang responded that she climbed a mountain on the border of
Iran and Greece and afterwards “took the gliding boat over.”
“[I]n assessing the credibility of an asylum applicant’s
testimony, an IJ is entitled to consider whether the applicant’s
story is inherently implausible.” Wensheng Yan v. Mukasey, 509
F.3d 63, 66 (2d Cir. 2007). Such a finding cannot be based on
“bald speculation or caprice.” Zhou Yun Zhang v. INS, 386 F.3d
66, 74 (2d Cir. 2004), overruled on other grounds by Shi Liang
Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). But
one that is based on “speculation that inheres in inference is
not ‘bald’ if the inference is made available to the factfinder
by record facts, or even a single fact, viewed in the light of
common sense and ordinary experience.” Siewe v. Gonzales, 480
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F.3d 160, 168-69 (2d Cir. 2007). Here, basic geography
supports the IJ’s inference: Iran and Greece do not share a
border.
Jiang’s applications for asylum, withholding of removal,
and CAT relief were all based on the same factual predicate,
and so the agency’s sound credibility determination was
dispositive as to all three. See Paul v. Gonzales, 444 F.3d
148, 156-57 (2d Cir. 2006).
Jiang argues that she independently established a
well-founded fear of persecution and a likelihood of torture
based on her practice of Christianity in the United States. But
the IJ determined that Jiang was not credible without
distinguishing between her current practice of Christianity and
her past persecution. In other words, the IJ made a unitary,
not bifurcated, credibility determination. Paul, 444 F.3d at
154 (“[A]n applicant may prevail on a theory of future
persecution despite an IJ’s adverse credibility ruling as to
past persecution, so long as the factual predicate of the
applicant’s claim of future persecution is independent of the
testimony that the IJ found not to be credible.” (emphasis
omitted). To the extent Jiang’s brief can be read to raise a
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due process claim, as the Government notes, any such claim is
unexhausted. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
123 (2d Cir. 2007) (“Judicially-imposed doctrines of issue
exhaustion . . . will usually mean that issues not raised to
the BIA will not be examined by the reviewing court.”); 8 U.S.C.
§ 1252(d)(1). We therefore decline to consider it. SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court,
in dealing with a determination or judgment which an
administrative agency alone is authorized to make, must judge
the propriety of such action solely by the grounds invoked by
the agency.”).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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