16-1388 Jiang v. Sessions BIA Poczter, IJ A205 390 719 

### 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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **10 th**  **day of October, two thousand seventeen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **RICHARD C. WESLEY,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **WEI JIANG,** 13 Petitioner **,** 14 15 **v. 16-1388** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Zhen Liang Li, New York, NY. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Leslie 26 McKay, Anthony W. Norwood, Senior 27 Litigation Counsel, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Wei Jiang, a native and citizen of the People’s 5 Republic of China, seeks review of a March 30, 2016, decision 6 of the BIA affirming an April 23, 2015, decision of an 7 Immigration Judge (“IJ”) denying Jiang’s application for 8 asylum, withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Wei Jiang, No. A205 390 719 10 (B.I.A. Mar. 30, 2016), aff’g No. A205 390 719 (Immig. Ct. N.Y. 11 City Apr. 23, 2015). We assume the parties’ familiarity with 12 the underlying facts and procedural history in this case. 13 Under the circumstances of this case, we have reviewed both 14 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales , 432 15 F.3d 391, 394 (2d Cir. 2005) (per curiam). The applicable 16 standards of review are well established. See 8 U.S.C. 17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165–66 18 (2d Cir. 2008) (per curiam). The agency may, “[c]onsidering 19 the totality of the circumstances,” base a credibility finding 20

on an asylum applicant’s “demeanor, candor, or responsiveness,” 213 and inconsistencies in his testimony, his witness’s testimony, 1 and his documentary evidence, “without regard to whether” any 2 such inconsistencies go “to the heart of the applicant’s claim.” 3 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 F.3d 4 at 163–64, 167. “We defer . . . to an IJ’s credibility 5 determination unless . . . it is plain that no reasonable 6 fact-finder could make such an adverse credibility ruling.” 7 Xiu Xia Lin , 534 F.3d at 167. Substantial evidence supports 8 the agency’s determination that Jiang was not credible. 9 Jiang primarily challenges the agency’s reliance on the 10 record of his interview with a Border Patrol agent, in which 11 he stated that he came to the United States to be with family 12 in New York and did not fear any harm in China. 13 “In assessing the reliability” of statements made during 14 a border interview, “we may take into account (1) whether the 15 ‘record of the interview . . . merely summarizes or paraphrases 16 the alien’s statements [rather than providing] a verbatim 17 account or transcript,’ (2) whether the questions posed to the 18 alien seem ‘designed to elicit the details of an asylum claim,’ 19 (3) whether ‘the alien appears to have been reluctant to reveal 20 information to . . . officials because of prior interrogation 214 sessions or other coercive experiences in his or her home 1 country,’ and (4) whether ‘the alien’s answers to the questions 2 posed suggest that the alien did not understand English or the 3 translations provided by the interpreter.” Yun-Zui Guan , 432 4 F.3d at 396 (quoting Ramsameachire v. Ashcroft , 357 F.3d 169, 5 179–80 (2d Cir. 2004)). The interview record reflected Jiang’s 6 answers verbatim and showed that an interpreter was used and 7 that Jiang understood the agent’s questions. And while Jiang 8 testified that he told the Border Patrol agent that he feared 9 harm in China, he also acknowledged that he understood the 10 interpreter and signed the interview record after it was read 11 to him. Thus, the agency did not err in concluding that the 12 interview record was reliable. Id. 13 Jiang concedes that his testimony conflicted with his 14 sister’s testimony regarding whether he attended church on the 15 Sunday before the asylum hearing. Although he argues that 16 their respective testimonies were otherwise consistent and thus 17 believable, his position is unfounded. The inconsistency 18 between Jiang’s testimony and his sister’s testimony called 19 into question their credibility as a whole and undermined 20 Jiang’s claim that he is a practicing Christian. See Siewe v. 215 Gonzales , 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false 1 document or a single instance of false testimony may (if 2 attributable to the petitioner) infect the balance of the 3 alien’s uncorroborated or unauthenticated evidence.”). Jiang 4 testified that he skipped church for the first time because he 5 was picking up money that a fr iend owed his sister. However, 6 Jiang’s sister testified that she and Jiang attended church 7 together that day, Jiang stayed for the entire sermon, Jiang’s 8 friends did not owe her any money, and no one had returned money 9 to her that day. Jiang has not offered any explanation for this 10 discrepancy, which calls into question both Jiang’s and his 11 sister’s credibility regarding their church attendance. Id. ; 12 see also Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005). 13 Jiang does not challenge any other grounds for the adverse 14 credibility determination and did not challenge them before the 15 BIA, so any further challenges are both unexhausted and waived. 16

See Foster v. U.S. INS , 376 F.3d 75, 78 (2d Cir. 2004) (per 17 curiam) (discussing exhaustion); Shunfu Li v. Mukasey , 529 F.3d 18 141, 146 (2d Cir. 2008) (waiver). Accordingly, the agency’s 19 other grounds—inconsistent documentary evidence regarding 20 Jiang’s church attendance, and Jiang’s demeanor—stand as valid 216 bases for the adverse credibility determination. See Shunfu 1 Li , 529 F.3d at 146–47. 2 Given the substantial discrepancies relating both to 3 Jiang’s allegation of past harm and his continuing practice of 4 Christianity, the totality of the circumstances supports the 5 adverse credibility determination. Xiu Xia Lin , 534 F.3d at 6 167. Because Jiang’s claims were all based on the same factual 7 predicate, the adverse credibility determination is 8 dispositive of asylum, withholding of removal, and CAT relief. 9 Paul v. Gonzales , 444 F.3d 148, 156–57 (2d Cir. 2006). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our rev iew, any stay of removal 12 that the Court previously granted in this petition is VACATED, 13 and any pending motion for a stay of removal in this petition 14 is DISMISSED as moot. Any pending request for oral argument 15 in this petition is DENIED in accordance with Federal Rule of 16 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 17 34.1(b). 18

FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20