Jing Yun Jiang v. Holder , 353 F. App'x 634 ( 2009 )


Menu:
  •     08-4801-ag
    Jiang v. Holder
    BIA
    Abrams, IJ
    A 200 114 550
    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.
    At a stated term of the United States Court of                  Appeals
    for the Second Circuit, held at the Daniel Patrick                  Moynihan
    United States Courthouse, 500 Pearl Street, in the                  City of
    New York, on the 20 th day of November, two thousand                nine.
    PRESENT:
    DENNIS JACOBS,
    Chief Judge,
    REENA RAGGI,
    PETER W. HALL,
    Circuit Judges.
    _______________________________________
    JING YUN JIANG,
    Petitioner,
    v.                                   08-4801-ag
    NAC
    ERIC H. HOLDER, JR., * ATTORNEY GENERAL,
    UNITED STATES DEPARTMENT OF JUSTICE,
    Respondent.
    ______________________________________
    *
    Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder Jr. is
    automatically substituted for former Attorney General
    Michael B. Mukasey as respondent in this case.
    FOR PETITIONER:                Norman Kwai Wing Wong, New York, New
    York.
    FOR RESPONDENT:                Michael F. Hertz, Acting Assistant
    Attorney General, Barry J.
    Pettinato, Assistant Director,
    Kristin A. Moresi, Trial Attorney,
    Office of Immigration Litigation,
    Civil Division, United States
    Department of Justice, Washington,
    D.C.
    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 Jing Yun Jiang, a native and citizen of China,
    seeks   review     of    the   September         8,    2008   order       of   the   BIA
    affirming the November 30, 2006 decision of Immigration Judge
    (“IJ”) Steven R. Abrams denying her applications for asylum,
    withholding      of     removal,     and       relief      under    the    Convention
    Against Torture (“CAT”).             In re Jing Yun Jiang, No. A 200 114
    550 (B.I.A. Sept. 8, 2008), aff’g No. A 200 114 550 (Immig.
    Ct.   N.Y.   City       Nov.   30,    2006).          We   assume    the       parties’
    familiarity with the underlying facts and procedural history
    in this case.
    When   the   BIA    agrees     with       the    IJ’s   conclusion        that   a
    petitioner is not credible and, without rejecting any of the
    2
    IJ’s grounds for decision, emphasizes particular aspects of
    that decision, we review both the BIA’s and IJ’s opinions.
    See Yun-Zui Guan v. Gonzales, 
    432 F.3d 391
    , 394 (2d Cir.
    2005).     We review the agency’s factual findings, including
    adverse    credibility         determinations,              under    the   substantial
    evidence standard. 
    8 U.S.C. § 1252
    (b)(4)(B); see also Corovic
    v. Mukasey, 
    519 F.3d 90
    , 95 (2d Cir. 2008).                         We review de novo
    questions of law and the application of law to undisputed
    fact.    See Salimatou Bah v. Mukasey, 
    529 F.3d 99
    , 110 (2d Cir.
    2008).
    Jiang does not challenge the IJ’s findings that: (1) her
    testimony was internally inconsistent regarding why she failed
    to tell U.S. border patrol agents that she was persecuted on
    account    of     her      Falun   Gong     activities         in    China;   (2)   her
    testimony regarding the date when she distributed Falun Gong
    flyers was inconsistent with the documentary evidence that she
    submitted       in   support       of    her       asylum   application;      (3)   her
    testimony was internally inconsistent regarding her Falun Gong
    activity     in      the     United      States;       (4)     her    testimony     was
    internally       inconsistent           regarding      whether       she   distributed
    Falun Gong flyers; and (5) there were discrepancies between
    her testimony and the documentary evidence she submitted.
    Thus, she has waived any challenge to those findings, Yueqing
    3
    Zhang v. Gonzales, 
    426 F.3d 540
    , 541 n.1, 545 n.7 (2d Cir.
    2005), which constitute substantial evidence for the IJ’s
    adverse credibility determination, see Shunfu Li v. Mukasey,
    
    529 F.3d 141
    , 146-147 (2d Cir. 2008).
    With respect to the findings that Jiang does challenge,
    each   was   proper.     Substantial     evidence    supports   the   IJ’s
    findings that: (1) Jiang’s testimony that she was beaten by
    the police was implausible; (2) there was a discrepancy within
    Jiang’s      testimony    and   between    her   testimony      and    the
    documentary evidence she submitted regarding her ability to
    practice Falun Gong; (3) Jiang provided inconsistent testimony
    regarding when she allegedly received Falun Gong materials in
    China; (4) Jiang provided evasive and implausible testimony
    regarding the location where she allegedly distributed Falun
    Gong flyers.      While Jiang offered explanations before the
    agency that were responsive to each of these findings, the
    agency did not err in rejecting them.         See Majidi v. Gonzales,
    
    430 F.3d 77
    , 80-81 (2d Cir. 2005).
    Having called Jiang’s testimony into question, the IJ
    properly noted the absence of corroborative evidence that
    could have rehabilitated her testimony.             See Xiao Ji Chen v.
    U.S. Dep’t of Justice, 
    471 F.3d 315
    , 341 (2d Cir. 2006).
    Ultimately,     substantial   evidence    supported      the   IJ’s
    4
    adverse credibility determination.     Thus, the IJ properly
    denied Jiang’s application for asylum, withholding of removal,
    and CAT relief because the only evidence that she would be
    persecuted or tortured depended on her credibility.   See
    
    8 U.S.C. § 1252
    (b)(4)(B); Xiu Xia Lin v. Mukasey, 
    534 F.3d 162
    , 167 (2d Cir. 2008); Paul v. Gonzales, 
    444 F.3d 148
    , 156
    (2d Cir. 2006).
    For the foregoing reasons, the petition for review is
    DENIED.   As we have completed our review, any pending motion
    for a stay of removal in this petition is DISMISSED as moot.
    Any pending request for oral argument in this petition is
    DENIED in accordance with Federal Rule of Appellate Procedure
    34(a)(2), and Second Circuit Local Rule 34(b).
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    By:___________________________
    5