Yong Ping Jiang v. United States Attorney General ( 2009 )

07-5175-ag
Jiang v. U.S. Attorney General
BIA
Weisel, IJ
A099 527 662
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 30 th day of December, two thousand nine.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSEPH M. McLAUGHLIN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 YONG PING JIANG,
14 Petitioner,
15
16 v. 07-5175-ag
17 NAC
18 UNITED STATES ATTORNEY GENERAL,
19 Respondent.
20
21 _______________________________________
1 FOR PETITIONER: Liu Yu, New York, New York.
2
3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
4 Attorney General; Anh-Thu P. Mai-
5 Windle, Senior Litigation Counsel;
6 Arthur L. Rabin, Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Yong Ping Jiang, a native and citizen of the People’s
16 Republic of China, seeks review of a November 5, 2007 order
17 of the BIA, affirming the October 23, 2006 decision of
18 Immigration Judge (“IJ”) Robert D. Weisel, which denied his
19 application for asylum, withholding of removal, and relief
20 under the Convention Against Torture (“CAT”). In re Yong
21 Ping Jiang, No. A099 527 662 (B.I.A. Nov. 5, 2007), aff’g
22 No. A099 527 662 (Immig. Ct. N.Y. City Oct. 23, 2006). We
23 assume the parties’ familiarity with the underlying facts
24 and procedural history in this case.
25 When the IJ’s decision rests on multiple alternate
26 grounds and the BIA adopts and affirms that decision without
27 expressly addressing each of the grounds, we review the
28 entire IJ decision and need not confine our review to the
2
1 grounds expressly addressed by the BIA. Ming Xia Chen v.
2 BIA, 435 F.3d 141, 144 (2d Cir. 2006). We review the
3 agency’s factual findings, including adverse credibility
4 findings, under the substantial evidence standard. See
5 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510
6 F.3d 377, 379 (2d Cir. 2007). We review de novo questions
7 of law and the application of law to undisputed fact.
8 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
9 For applications governed by the REAL ID Act of 2005, the
10 agency may, considering the totality of the circumstances,
11 base a credibility finding on an asylum applicant’s
12 demeanor, the plausibility of his or her account, and
13 inconsistencies in his or her statements, without regard to
14 whether they go “to the heart of the applicant’s claim.”
15 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey,
16 534 F.3d 162, 167 (2d Cir. 2008).
17 The agency’s adverse credibility finding is supported
18 by substantial evidence. In finding Jiang not credible, the
19 agency reasonably relied on inconsistencies in his
20 testimony. See Liang Chen v. U.S. Attorney Gen., 454 F.3d
21 103, 106-07 (2d Cir. 2006). For example, the agency
22 reasonably noted the inconsistency in Jiang’s testimony as
3
1 to when the police began to search for him, and discredited
2 his explanation for the inconsistency. See Majidi v.
3 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that an
4 agency need not credit an applicant’s explanations for
5 inconsistent testimony unless those explanations would
6 compel a reasonable fact-finder to do so). The agency also
7 reasonably noted a discrepancy between Jiang’s testimony
8 and his asylum application regarding whether he suffered any
9 physical harm or intimidation while in detention. Under the
10 REAL ID Act, these findings were sufficient to support the
11 agency’s conclusion that Jiang was not credible. See Xiu
12 Xia Lin, 534 F.3d at 167. Accordingly, the agency’s denial
13 of asylum was not in error. Similarly, the agency did not
14 err in denying Jiang’s application for withholding of
15 removal and CAT relief, insofar as these claims were based
16 on the same factual predicate as his asylum claim. See Paul
17 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang
18 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
4
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
9 By:___________________________
5