Jin Hua Jiang v. Holder , 538 F. App'x 30 ( 2013 )

12-2759
Jiang v. Holder
BIA
Hom, IJ
A093 341 885
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of September, two thousand thirteen.
5
6 PRESENT:
7 PETER W. HALL,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 JIN HUA JIANG,
14 Petitioner,
15
16 v. 12-2759
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Offices of Michael
24 Brown, PC, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
27 Assistant Attorney General; Russell
28 J.E. Verby, Senior Litigation
29 Counsel; John D. Williams, Trial
1 Attorney, Office of Immigration
2 Litigation, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED in part and DENIED in part.
9 Jin Hua Jiang, a native and citizen of the People’s
10 Republic of China, seeks review of a June 18, 2012, decision
11 of the BIA affirming the May 27, 2011, decision of
12 Immigration Judge (“IJ”) Sandy K. Hom, which pretermitted
13 his application for asylum as untimely and denied his
14 applications for withholding of removal and relief under the
15 Convention Against Torture (“CAT”). In re Jin Hua Jiang,
16 No. A093 341 885 (B.I.A. June 18, 2012), aff’g No. A093 341
17 885 (Immig. Ct. N.Y. City May 27, 2011). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Because the BIA stated alternate grounds for denial
21 without rejecting any of the IJ’s reasoning, we have
22 reviewed both the IJ’s and the BIA’s decisions. See Ming
23 Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). The
24 applicable standards of review are well-established.
2
1 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
2 F.3d 510, 513 (2d Cir. 2009).
3 Under 8 U.S.C. § 1158(a)(3), no court shall have
4 jurisdiction to review the agency’s finding that an asylum
5 application was untimely under § 1158(a)(2)(B) unless a
6 petition raises a constitutional claim or question of law.
7 See id. § 1252(a)(2)(D). Although Jiang’s challenge to the
8 agency’s pretermission of his asylum application as untimely
9 is framed in terms of questions of law – whether the agency
10 erred in rejecting probative evidence and whether a fee
11 receipt was sufficient to discharge his burden of proof – we
12 lack jurisdiction to review his challenge because he merely
13 quarrels with the IJ’s factual determination. See 8 U.S.C.
14 § 1158(a); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
15 315, 329 (2d Cir. 2006). Accordingly, we dismiss the
16 petition in part as to asylum. As Jiang has waived any
17 challenge to the agency’s denial of CAT relief, the only
18 issue before us is whether the agency erred in denying
19 withholding of removal.
20 For applications for withholding of removal such as
21 Jiang’s, governed by the amendments made to the Immigration
22 and Nationality Act by the REAL ID Act of 2005, the agency
3
1 may, considering the totality of the circumstances, base a
2 credibility finding on an asylum applicant’s “demeanor,
3 candor, or responsiveness,” and any inconsistencies in his
4 statements, without regard to whether those inconsistencies
5 go “to the heart of the applicant’s claim.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii); see also 8 U.S.C. § 1231(b)(3)©. This
7 Court “defer[s] to an IJ’s credibility determination unless,
8 from the totality of the circumstances, it is plain that no
9 reasonable fact-finder could make such an adverse
10 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
11 167 (2d Cir. 2008) (per curiam).
12 Here, substantial evidence supports the agency’s
13 adverse credibility determination. Contrary to Jiang’s
14 contention, the IJ reasonably characterized as inconsistent
15 his testimony about the dates related to his persecution in
16 China because Jiang initially testified that he was reported
17 for hiding a Falun Gong practitioner on September 13, 2004,
18 but later he indicated it was September 28, 2004. Id.19 Moreover, as the agency found, Jiang’s inability to recall
20 important dates related to his alleged persecution without
21 prompting from his attorney undermined his credibility. See
22 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d
4
1 Cir. 2005) (affording “particular deference” to credibility
2 determinations that are based on the adjudicator’s
3 observation of the applicant’s demeanor).
4 Jiang also contends that he sufficiently corroborated
5 his claim. However, the agency reasonably determined that
6 Jiang failed to adequately corroborate his Falun Gong
7 practice in China given that the evidence he provided lacked
8 the indicia of reliability. See 8 U.S.C.
9 § 1158(b)(1)(B)(ii); see also Chuilu Liu v. Holder, 575 F.3d
10 193, 197-98 (2d Cir. 2009); Xiao Ji Chen, 471 F.3d at 342.
11 The agency reasonably afforded limited evidentiary weight to
12 a letter from Jiang’s wife because she lacked personal
13 knowledge of relevant events in China, and to statements
14 from other family members because they were unsworn,
15 unauthenticated, and based on hearsay. See Xiao Ji Chen,
16 471 F.3d at 342; Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209,
17 215 (BIA 2010), overruled on other grounds by Hui Lin Huang
18 v. Holder, 677 F.3d 130 (2d Cir. 2012).
19 Finally, Jiang’s accurate observation that the IJ
20 misidentified his attorney’s name in the written decision is
21 insufficient to require remand because the error was
22 superficial and did not taint the IJ’s reasoning for denying
23 relief. Tu Lin v. Gonzales, 446 F.3d 395, 401 (2d Cir.
24 2006).
5
1 For the foregoing reasons, the petition for review is
2 DISMISSED, in part, and DENIED, in part. As we have
3 completed our review, any stay of removal that the Court
4 previously granted in this petition is VACATED, and any
5 pending motion for a stay of removal in this petition is
6 DENIED as moot.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
6