Tang v. Garland ( 2023 )

21-6514
Tang v. Garland
BIA
Cassin, IJ
A097 518 831
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.
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 4th day of December, two thousand
twenty-three.
PRESENT:
RICHARD J. SULLIVAN,
ALISON J. NATHAN,
SARAH A. L. MERRIAM,
Circuit Judges.
_____________________________________
FEI JUN TANG,
Petitioner,
v. 21-6514
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Zhen Liang Li, Esq., New York, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
Attorney General; John S. Hogan, Assistant
Director; Matthew A. Spurlock, 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 Fei Jun Tang, a native and citizen of the People’s Republic of
China, seeks review of an August 23, 2021, decision of the BIA affirming an
October 5, 2018, decision of an Immigration Judge (“IJ”) denying his application
for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Fei Jun Tang, No. A097 518 831 (B.I.A. Aug. 23, 2021), aff’g
No. A097 518 831 (Immigr. Ct. N.Y.C. Oct. 5, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
When the BIA affirms the IJ’s decision and adopts its reasoning, we consider
both the IJ’s and BIA’s decisions together. See Wangchuck v. Dep’t of Homeland Sec.,
448 F.3d 524, 528 (2d Cir. 2006). We review an adverse credibility determination
“under the substantial evidence standard,” Hong Fei Gao v. Sessions, 891 F.3d 67, 76
(2d Cir. 2018), treating “the administrative findings of fact [as] conclusive unless
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any reasonable adjudicator would be compelled to conclude to the contrary,” 8
U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008). The agency may base its credibility determination on the “totality of the
circumstances” and “all relevant factors,” including “the demeanor, candor, or
responsiveness of the applicant or witness, . . . the consistency between the
applicant’s or witness’s written and oral statements (whenever made and whether
or not under oath, and considering the circumstances under which the statements
were made), the internal consistency of each such statement, [and] the consistency
of such statements with other evidence of record . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,
or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
Tang alleged that the police in China detained and beat him for practicing
Christianity in an unregistered church and that he continues to practice
Christianity in the United States. Substantial evidence supports the agency’s
determination that Tang was not credible.
In making that finding, the agency reasonably relied on (1) Tang’s
inconsistent statements regarding whether police beat him with an electric baton
on his hand, (2) his inconsistent evidence regarding when he first contemplated
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leaving China, and (3) his hesitant and vague testimony when confronted with his
inconsistent statements and when questioned about his church attendance and his
employment. See id.; Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven
a single inconsistency might preclude an alien from showing that an IJ was
compelled to find him credible. Multiple inconsistencies would so preclude even
more forcefully.”); Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)
(“We can be still more confident in our review of observations about an applicant’s
demeanor where, as here, they are supported by specific examples of inconsistent
testimony.”). Moreover, Tang failed to provide a compelling explanation for
those inconsistencies and, when questioned about them, was only evasive or
nonresponsive in his answers. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
(“A petitioner must do more than offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a reasonable fact-finder
would be compelled to credit his testimony.” (quotation marks omitted)).
With Tang’s credibility already in question, the agency also reasonably
relied on his failure to rehabilitate his testimony with reliable corroborating
evidence. “An applicant’s failure to corroborate his or her testimony may bear
on credibility, because the absence of corroboration in general makes an applicant
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unable to rehabilitate testimony that has already been called into question.” Biao
Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ reasonably afforded
limited weight to letters from Tang’s wife and mother because those statements
were prepared by interested parties who were not available for cross-examination.
See Likai Gao, 968 F.3d at 149 (holding that an “IJ acted within her discretion in
according . . . little weight [to letters from applicant’s wife and a person arrested
with him] because the declarants (particularly [the] wife) were interested parties
and neither was available for cross-examination”). Nor did the IJ err in finding
that Tang’s medical record was insufficient to rehabilitate his testimony because
his injuries were not described consistently with his testimony. See Y.C. v. Holder,
741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the agency’s determination of the
weight afforded to an alien’s documentary evidence.”). Finally, while the IJ
found that Tang’s sister was a credible witness, it reasonably discounted her
testimony because she could not corroborate Tang’s assertions that he had faced
persecution in China.
Tang’s inconsistencies, questionable demeanor, and lack of reliable
corroboration constitute substantial evidence for the adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao, 968 F.3d at 145 n.8; Biao
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Yang, 496 F.3d at 273; Jin Chen v. U.S. Dep’t of Just., 426 F.3d 104, 113 (2d Cir. 2005)
(“We give particular deference to . . . the adjudicator’s observation of the
applicant’s demeanor, in recognition of the fact that the IJ’s ability to observe . . .
demeanor places her in the best position to evaluate whether apparent problems
in the . . . testimony suggest a lack of credibility or, rather, can be attributed to an
innocent cause such as difficulty understanding the question.”). The adverse
credibility determination is dispositive of all relief because Tang’s asylum,
withholding of removal, and CAT claims all rely on the same factual predicate.
See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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