Ming Jiang v. Holder ( 2010 )

09-3395-ag
Jiang v. Holder
BIA
Mulligan, IJ
A095 459 842
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 21 st day of July, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 MING JIANG,
14 Petitioner,
15
16 v. 09-3395-ag
17 NAC
18 ERIC H. HOLDER, Jr., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: John Z. Zhang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Luis E. Perez, Senior
27 Litigation Counsel, John B. Holt,
28 Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED in part and DISMISSED in part.
5 Petitioner Ming Jiang, a native and citizen of the
6 People’s Republic of China, seeks review of a July 20, 2009,
7 order of the BIA, affirming the November 1, 2007, decision
8 of Immigration Judge (“IJ”) Thomas J. Mulligan, denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Ming
11 Jiang, No. A095 459 842 (B.I.A. July 20, 2009), aff’g No.
12 A095 459 842 (Immig. Ct. N.Y. City Nov. 1, 2007). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513-14 (2d Cir. 2009).
21 Substantial evidence supports the IJ’s adverse
2
1 credibility determination. 1 The IJ found that: (1) although
2 Jiang testified at his November 2007 hearing that he only
3 threatened family planning officials with a stick, he
4 stated, both in his amended statement and at his May 2003
5 hearing, that he hit the officials with a stick; (2)
6 although Jiang testified at his November 2007 hearing that
7 there were more than ten cadres at his sister’s house, he
8 stated at his May 2003 hearing that there were only four
9 cadres; and (3) Jiang offered three different dates as to
10 when his wife was forced to have an abortion – January 29,
11 1999, January 29, 2000, and January 22, 2000. Although
12 minor and isolated discrepancies may be insufficient to
13 support an adverse credibility finding, see Diallo v. INS,
14 232 F.3d 279, 285-86 (2d Cir. 2000), the multiple
15 discrepancies here were not isolated, and related to events
16 at the heart of Jiang’s claim – that he suffered past
17 persecution and feared future persecution based on his
18 “other resistance” to China’s family planning policy. Thus,
19 the IJ reasonably relied on their cumulative effect to call
1
Because Jiang filed his asylum application before
May 11, 2005, the amendments made to the Immigration and
Nationality Act by the REAL ID Act of 2005 do not apply
to his asylum application. See Pub. L. No. 109-13,
§ 101(h)(2), 119 Stat. 231, 305 (2005).
3
1 into question Jiang’s credibility. See Tu Lin v. Gonzales,
2 446 F.3d 395, 402 (2d Cir. 2006). Furthermore, the IJ
3 reasonably relied on Jiang’s demeanor to find him not
4 credible, noting that he was “visibly nervous” and “very
5 uncomfortable.” The IJ also noted that when Jiang was
6 questioned about the incident in which he allegedly
7 threatened or beat family planning officials, “there was a
8 very serious lack of detail in his testimony” and “[i]t took
9 about six or seven attempts at additional questioning
10 . . . to elicit further details.” We afford particular
11 deference to such assessments of an applicant’s demeanor.
12 See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
13 Accordingly, substantial evidence supports the agency’s
14 adverse credibility determination. See Zhou Yun Zhang v.
15 INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled in part on
16 other on other grounds by Shi Liang Lin v. U.S. Dep’t of
17 Justice, 494 F.3d 296 (2d Cir. 2007). Because the only
18 evidence of a threat to Jiang’s life or freedom depended
19 upon his credibility, the adverse credibility determination
20 in this case necessarily precludes success on his claim for
21 asylum and withholding of removal. See Paul v. Gonzales,
22 444 F.3d 148, 156 (2d Cir. 2006).
4
1 We lack jurisdiction to consider Jiang’s unexhausted
2 challenge to the IJ’s denial of his request for CAT relief
3 and dismiss the petition for review to the extent that it
4 seeks relief on this basis. See 8 U.S.C. § 1252(d)(1).
5 For the foregoing reasons, the petition for review is
6 DENIED in part and DISMISSED in part. As we have completed
7 our review, any stay of removal that the Court previously
8 granted in this petition is VACATED, and any pending motion
9 for a stay of removal in this petition is DISMISSED as moot.
10 Any pending request for oral argument in this petition is
11 DENIED in accordance with Federal Rule of Appellate
12 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
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