Yong Ci Jiang v. Holder , 429 F. App'x 34 ( 2011 )

10-2093-ag
Jiang v. Holder
BIA
Mulligan, IJ
A093 408 604
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 8th day of July, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 YONG CI JIANG,
14 Petitioner,
15
16 v. 10-2093-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Khaghendra Gharti-Chhetry, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Yanal H. Yousef,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Petitioner Yong Ci Jiang, a native and citizen of the
6 People’s Republic of China, seeks review of an April 30,
7 2010, order of the BIA, affirming, upon reconsideration, the
8 December 17, 2007, decision of Immigration Judge (“IJ”)
9 Thomas J. Mulligan, which denied his application for asylum,
10 withholding of removal, and relief under the Convention
11 Against Torture (“CAT”), and denying his motion to reopen.
12 In re Yong Ci Jiang, No. A093 408 604 (B.I.A. Apr. 30,
13 2010), aff’g No. A093 408 604 (Immig. Ct. N.Y. City Dec. 17,
14 2007). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 I. Asylum, Withholding of Removal, and CAT
17 Under the circumstances of this case, we have reviewed
18 both the IJ’s and the BIA’s opinions “for the sake of
19 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
20 2008). The applicable standards of review are well-
21 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
22 Holder, 562 F.3d 510, 513 (2d Cir. 2009). For applications
23 governed by the REAL ID Act of 2005, the agency may,
2
1 considering the totality of the circumstances, base a
2 credibility finding on an asylum applicant’s demeanor, the
3 plausibility of his account, and inconsistencies in his
4 statements, without regard to whether they go “to the heart
5 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
6 see also In re J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).
7 Analyzed under the REAL ID Act, the agency’s adverse
8 credibility determination is supported by substantial
9 evidence.
10 In finding Jiang’s testimony not credible, the IJ
11 relied in part on his demeanor, noting that when confronted
12 with questions that raised doubts as to his credibility on
13 cross-examination, he “conveyed the impression that he was
14 crying” in a manner that was “clearly contrived.” Because
15 the IJ was in the best position to observe Jiang’s manner
16 while testifying, we afford his demeanor finding particular
17 deference. See Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74
18 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin
19 v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007).
20 Moreover, because the agency, in conjunction with the
21 demeanor finding, identified an inconsistency in Jiang’s
22 testimony, we may more confidently rely on the IJ’s finding.
3
1 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109
2 (2d Cir. 2006).
3 Reliance by the agency on an inconsistency in Jiang’s
4 testimony regarding whether he paid a fine to family
5 planning officials was reasonable. See Xiu Xia Lin v.
6 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see also 8 U.S.C.
7 § 1158(b)(1)(B)(iii). Jiang argues that his testimony was
8 not inconsistent, because he never explicitly testified that
9 he personally paid the fine, and he meant that his mother
10 paid the fine while he was in hiding. Review of the record,
11 however, supports the agency’s understanding of Jiang’s
12 testimony and its finding that his testimony was
13 inconsistent. See Borovikova v. U.S. Dep’t of Justice, 435
14 F.3d 151, 161 (2d Cir. 2006) (noting that while the Court
15 “can never be certain that the IJ correctly evaluated a
16 petitioner’s truthfulness, the statute that governs our
17 review rests on the presumption that the IJ is in a better
18 position than a reviewing tribunal to decide such
19 questions”); see also Majidi v. Gonzales, 430 F.3d 77, 80-81
20 (2d Cir. 2005) (holding that the agency need not credit an
21 applicant’s explanations for inconsistent testimony unless
22 those explanations would compel a reasonable factfinder to
4
1 do so).
2 Ultimately, because a reasonable fact-finder would not
3 be compelled to make contrary findings, the IJ’s adverse
4 credibility determination is supported by substantial
5 evidence. See Xian Tuan Ye v. Dep’t of Homeland Security,
6 446 F.3d 289, 294 (2d Cir. 2006). Because Jiang’s
7 withholding of removal and CAT claims were based on the same
8 factual predicate as his asylum claim, the adverse
9 credibility determination is dispositive. See Paul v.
10 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (withholding of
11 removal); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
12 520, 523 (2d Cir. 2006) (CAT).
13 II. Motion to Reopen
14 We have reviewed the BIA’s denial of Jiang’s motion to
15 reopen for abuse of discretion, Ali v. Gonzales, 448 F.3d
16 515, 517 (2d Cir. 2006), mindful of the Supreme Court’s
17 admonition that motions to reopen are “disfavored,” see
18 Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006).
19 Here, the BIA did not abuse its discretion in denying
20 Jiang’s motion to reopen based on his failure to establish
21 his prima facie eligibility for relief. See INS v. Abudu,
22 485 U.S. 94, 104 (1988).
23 Jiang argues that the BIA improperly discounted a
5
1 notice instructing him to report for sterilization, which he
2 submitted with his motion to reopen. However, in light of
3 the agency’s reasonable adverse credibility determination,
4 the BIA did not err in finding that this document was
5 insufficient to rehabilitate Jiang’s credibility given that
6 the notice does not resolve the inconsistency in Jiang’s
7 testimony or the problem with his demeanor, and was thus
8 insufficient to demonstrate his prima facie eligibility for
9 relief. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005).
10 Accordingly, the BIA did not abuse its discretion in denying
11 Jiang’s motion to reopen. See id.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
6