DocketNumber: 18-1476
Filed Date: 9/17/2020
Status: Non-Precedential
Modified Date: 9/17/2020
18-1476 Dong v. Barr BIA Vomacka, IJ A200 829 361 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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of September, two thousand twenty. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 DENNY CHIN, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 CAI YUN DONG, 14 Petitioner, 15 16 v. 18-1476 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gerald Karikari, New York, NY. 24 25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 26 Attorney General; Jeffery R. 27 Leist, Senior Litigation Counsel; 28 Lance L. Jolley, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 Justice, Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Cai Yun Dong, a native and citizen of the 6 People’s Republic of China, seeks review of an April 18, 7 2018, decision of the BIA affirming an August 7, 2015, 8 decision of an Immigration Judge (“IJ”) denying Dong’s 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Cai 11 Yun Dong, No. A200 829 361 (B.I.A. Apr. 18, 2018), aff’g 12 No. A 200 829 361 (Immig. Ct. N.Y. City Aug. 7, 2015). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history. 15 Under the circumstances, we consider both the IJ’s and 16 the BIA’s opinions “for the sake of completeness.” 17 Wangchuck v. Dep’t of Homeland Sec.,448 F.3d 524
, 528 (2d 18 Cir. 2006). The applicable standards of review are well 19 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 20 Sessions,891 F.3d 67
, 76 (2d Cir. 2018); Santoso v. 21 Holder,580 F.3d 110
, 111 (2d Cir. 2009). The agency 2 1 concluded that Dong was not credible as to her allegation 2 of past persecution on account of her practice of 3 Christianity and that she failed to establish a pattern or 4 practice of persecution of Christians as needed to state a 5 claim for relief from removal based on her practice of 6 Christianity in the United States. 7 A. Adverse Credibility Determination 8 “Considering the totality of the circumstances, and all 9 relevant factors, a trier of fact may base a credibility 10 determination on the demeanor, candor, or responsiveness of 11 the applicant or witness, the inherent plausibility of the 12 applicant’s or witness’s account, the consistency between 13 the applicant’s or witness’s written and oral statements 14 . . . , the internal consistency of each such statement 15 . . . without regard to whether an inconsistency, 16 inaccuracy, or falsehood goes to the heart of the 17 applicant’s claim, or any other relevant factor.” 8 U.S.C. 18 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 53419 F.3d 162
, 163–64 (2d Cir. 2008). “We defer . . . to an 20 IJ’s credibility determination unless, from the totality of 21 the circumstances, it is plain that no reasonable fact- 3 1 finder could make such an adverse credibility ruling.” Xiu 2 XiaLin, 534 F.3d at 167
; accord Hong FeiGao, 891 F.3d at 3
76. Substantial evidence supports the agency’s 4 determination that Dong was not credible as to her claim 5 that police had arrested and beaten her and would arrest 6 her in the future on account of her unauthorized religious 7 practice in China. 8 The IJ reasonably found that Dong gave the impression 9 that her testimony was memorized rather than based on 10 experience. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also 11 Majidi v. Gonzales,430 F.3d 77
, 81 n.1 (2d Cir. 2005). 12 That finding is supported by the record. Dong repeatedly 13 changed dates stating that she had given the “wrong answer” 14 rather than indicating that she had trouble remembering the 15 dates. Further, in response to questions posed by her 16 attorney, Dong’s testimony was clear and concise, but she 17 became evasive on cross-examination. Finally, although not 18 discernable from the written transcript, the IJ observed 19 that Dong testified about the alleged persecution she 20 suffered with a flat affect. Because the IJ’s demeanor 21 finding is supported by the record and the IJ was “in the 4 1 best position to evaluate whether apparent problems in 2 [Dong’s] testimony suggest[ed] a lack of credibility,” we 3 afford “particular deference” to that finding. Jin Chen v. 4 U.S. Dep’t of Justice,426 F.3d 104
, 113 (2d Cir. 2005). 5 The IJ’s demeanor finding and the adverse credibility 6 determination as a whole are further supported by specific 7 examples of record inconsistencies. See 8 U.S.C. 8 § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of Justice, 9453 F.3d 99
, 109 (2d Cir. 2006) (“We can be still more 10 confident in our review of observations about an 11 applicant’s demeanor where, as here, they are supported by 12 specific examples of inconsistent testimony.”). For 13 example, Dong provided different descriptions of the 14 beatings she purportedly suffered, she made contradictory 15 statements regarding whether she had a Chinese passport, 16 her testimony that police were harassing her parents and 17 looking for her was inconsistent with her testimony that 18 she departed China without difficulty using her own 19 passport and that she obtained a new Chinese passport 20 without issue within months of her arrival in the United 21 States, and she provided inconsistent evidence as to 5 1 whether she belonged to a formal church in China. 2 Given the demeanor and inconsistency findings, the 3 agency’s adverse credibility determination is supported by 4 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). 5 That determination is dispositive of asylum, withholding of 6 removal, and CAT relief insofar as those claims were based 7 on Dong’s assertion that officials persecuted and continued 8 to look for her for practicing her religion in China. See 9 Paul v. Gonzales,444 F.3d 148
, 156–57 (2d Cir. 2006). 10 B. Burden of Proof 11 Because Dong was not credible as to her claim of past 12 persecution, she had the burden to establish a well-founded 13 fear persecution based on her religion by showing a 14 reasonable possibility that she would be singled out for 15 persecution or that there was a pattern or practice of 16 persecution of similarly situated Christians. See 8 C.F.R. 17 § 1208.13(b)(2)(iii). Dong argued only that she 18 established a pattern or practice of persecution. 19 The agency did not err in finding that Dong failed to 20 establish a pattern or practice of persecution of similarly 21 situated Christians. The country conditions evidence in 6 1 the record shows that tens of millions of Christians 2 practice in unregistered churches in China and that in some 3 areas they do so without interference, and thus does not 4 establish the systemic or pervasive persecution of 5 similarly situated Christians sufficient to demonstrate a 6 pattern and practice of persecution. See 8 C.F.R. 7 § 1208.13(b)(2)(iii); see alsoSantoso, 580 F.3d at 112
& 8 n.1; In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005). 9 Accordingly, because Dong failed to demonstrate a well- 10 founded fear of persecution on account of her religion, the 11 agency did not err in denying asylum, withholding of 12 removal, and CAT relief to that extent. See Paul,444 F.3d 13
at 156–57. 14 For the foregoing reasons, the petition for review is 15 DENIED. All pending motions and applications are DENIED 16 and stays VACATED. 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court 20 7
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