Ming Fei Jiang v. Holder

11-2802 BIA
Jiang v. Holder Weisel, IJ
A087 441 504
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 24th day of June, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 MING FEI JIANG,
14 Petitioner,
15
16 v. 11-2802
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, New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Anthony W. Norwood, Senior
28 Litigation Counsel; Colin J. Tucker,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 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 DENIED.
9 Petitioner Ming Fei Jiang, a native and citizen of
10 China, seeks review of a June 27, 2011, order of the BIA,
11 affirming a January 26, 2010, decision of Immigration Judge
12 (“IJ”) Robert Weisel, denying his application for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Ming Fei Jiang, No. A087 441
15 504 (B.I.A. June 27, 2011), aff’g No. A087 441 504 (Immig.
16 Ct. N.Y. City Jan. 26, 2010). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 Because the Board’s reasoning “closely tracks” the
20 IJ’s, we have reviewed both the IJ’s and the BIA’s opinions
21 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
22 233, 237 (2d Cir. 2008). The agency’s findings of fact,
23 including credibility determinations, are reviewed under the
24 substantial evidence standard, Yanqin Weng v. Holder, 562
25 F.3d 510, 513 (2d Cir. 2009), and “are conclusive unless any
2
1 reasonable adjudicator would be compelled to conclude to the
2 contrary.” 8 U.S.C. § 1252(b)(4)(B). Because this
3 application is governed by the REAL ID Act of 2005, the
4 agency may, considering the totality of the circumstances,
5 base a credibility finding on an asylum applicant’s
6 demeanor, the plausibility of his account, and
7 inconsistencies in his statements, without regard to whether
8 they go “to the heart of the applicant’s claim.” 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
10 265 (B.I.A. 2007).
11 Analyzed under the REAL ID Act, the agency’s adverse
12 credibility determination is supported by substantial
13 evidence. In finding Jiang not credible, the agency
14 reasonably relied on the inconsistency between his testimony
15 and asylum application concerning his knowledge of Falun
16 Gong while in China. See 8 U.S.C. § 1158(b)(1)(B)(iii). As
17 the agency noted, Jiang’s testimony that he had little, if
18 any, understanding of Falun Gong while in China contradicted
19 statements in his asylum application. In his asylum
20 application, he stated that while in China, he had
21 publically lectured individuals about what Falun Gong is and
22 the truth about why the Chinese government suppresses Falun
3
1 Gong; he also stated that he had only begun to support Falun
2 Gong after he understood what Falun Gong was. Although
3 Jiang takes issue with the agency’s interpretation of his
4 asylum application as reflecting a deeper understanding of
5 Falun Gong than his subsequent testimony indicated, it is
6 not our role to determine which possible inference is the
7 most plausible. See Siewe v. Gonzales, 480 F.3d 160, 168
8 (2d Cir. 2007) (under the substantial evidence standard,
9 “support for a contrary inference,” even if “more plausible
10 or more natural,” is not error). Where, as here, the
11 agency’s inference “is tethered to the evidentiary record,
12 we will accord deference to the finding.” Id. at 169.
13 Finally, error, if any, in the Board’s one-sentence
14 statement that the IJ had relied on the petitioner’s
15 demeanor in its adverse credibility determination is
16 harmless given the Board’s overwhelming reliance on Jiang’s
17 inconsistent statements. Jin Jin Long v. Holder, 620 F.3d
18 162, 165 n.4 (2d Cir. 2010) (applying harmless error
19 standard); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
20 315, 339 (2d Cir. 2006) (noting that remand is futile when
21 this Court “can ‘confidently predict’ that the agency would
22 reach the same decision absent [any] errors that were made”)
4
1 (quoting Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,
2 406 (2d Cir. 2005)).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, petitioner’s
5 motion for stay of removal is DENIED as moot.
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
5