17-1099 Jiang v. Sessions BIA Segal, IJ A206 059 971 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 18 th**  **day of September, two thousand** 4 **eighteen.** 5 6 **PRESENT:** 7 **RALPH K. WINTER,** 8 **GUIDO CALABRESI,** 9 **JOSÉ A. CABRANES,** 10 Circuit Judges. 11

**_____________________________________** 12 **FEI JIANG,** 13 Petitioner **,** 14 15 **v. 17-1099** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Michael Brown, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Briena L. 26 Strippoli, Senior Litigation 27 Counsel; Jenny C. Lee, Trial 28 Attorney, Office of Immigration 29 Litigation, United States 30 Department of Justice, Washington, 31 DC. 322 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 3 is DENIED. 4 Petitioner Fei Jiang, a native and citizen of China, 5 seeks review of an April 7, 2017, decision of the BIA 6 affirming a February 24, 2016, decision of an Immigration 7 Judge (“IJ”) denying Jiang’s application for asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Fei Jiang, No. A 206 059 971 10 (B.I.A. Apr. 7, 2017), aff’g No. A 206 059 971 (Immig. Ct. 11 N.Y. City Feb. 24, 2016). We assume the parties’ familiarity 12 with the underlying facts and procedural history in this case. 13 We have reviewed both the BIA’s and the IJ’s decisions. 14 Zaman v. Mukasey , 514 F.3d 233, 237 (2d Cir. 2008). We 15 review the adverse credibility determination under the 16 substantial evidence standard. See 8 U.S.C. 17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165- 18 66 (2d Cir. 2008). “Considering the totality of the 19 circumstances, . . . a trier of fact may base a credibility 20 determination on the demeanor, candor, or responsiveness of 21 the applicant . . . , the consistency between the 223 applicant’s or witness’s written and oral statements . . . 1 , the internal consistency of each such statement, the 2 consistency of such statements with other evidence of 3 record . . . , and any inaccuracies or falsehoods in such 4 statements, . . . or any other relevant factor.” 8 U.S.C. 5 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 F.3d at 6 163-64. “We defer . . . to an IJ’s credibility 7 determination unless . . . it is plain that no reasonable 8 fact-finder could make such an adverse credibility ruling.” 9 Xiu Xia Lin , 534 F.3d at 167. Substantial evidence 10 supports the agency’s determination that Jiang was not 11 credible. 12 Jiang testified that he was arrested at a church 13 gathering in September 2011 and escap ed from a gathering that 14 was broken up by authorities in June 2012. But, as the IJ 15 found, the November 2015 statement from Jiang’s church in 16 China stated only that Jiang participated in church 17 activities in April 2011. The IJ reasonably relied on the 18 inconsistency between Jiang’s testimony and the letter, 19 particularly as he testified that th e priest who authored the 20 letter was aware of Jiang’s participation in 2012 and the 21 priest was present at the 2012 raid on the church. Given 224 that Jiang’s arrest and continued practice was the sole basis 1 of his claim, this inconsistency provides substantial support 2 for the adverse credibility determination. Id. at 166-67 3 (explaining that “an IJ may rely on any inconsistency or 4 omission” and upholding reliance on omissions and 5 inconsistencies stemming from corroborating letters); Xian 6 Tuan Ye v. Dep’t of Homeland Sec. , 446 F.3d 289, 295 (2d Cir. 7 2006) (“[A] material inconsistency in an aspect of [the 8 applicant]’s story that served as an example of the very 9 persecution from which he sought asylum” affords “substantial 10 evidence to support the adverse credibility finding.” 11 (internal quotations omitted)); Ming Zhang v. Holder , 585 12 F.3d 715, 726 (2d Cir. 2009) (“Omissions that go to a heart 13 of an applicant’s claim can form the basis for an adverse 14 credibility determination.” (brackets, quotation marks, and 15 citation omitted)); cf. Hong Fei Gao v. Sessions , 891 F.3d 16 67, 77 (2d Cir. 2018) (“A trivial inconsistency or omission 17 that has no tendency to suggest a petitioner fabricated his 18 or her claim will not support an adverse credibility 19 determination.”). 20 Jiang explained that the letter did not reflect the full 21 period of his church attendance because sometimes the priest 225 was not there, and other times, the activities and gatherings 1 were not reported to the “spo nsoring church.” The IJ was not 2 required to accept these explanations because Jiang also 3 testified that the priest did attend the June 2012 gathering 4 that was broken up by authorities and Jiang was unable to 5 explain what the sponsoring church was. See Majidi v. 6

Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 7 do more than offer a plausible explanation for his 8 inconsistent statements to secure relief; he must demonstrate 9 that a reasonable fact-finder would be compelled to credit 10 his testimony.” (internal quotation marks and citations 11 omitted)). Similarly, Jiang speculated that the friend who 12 obtained the letter for him neglected to mention to the priest 13 that Jiang was present in June 2012. But the IJ did not have 14 to accept that explanation because Jiang also testified that 15 the certificate was not based solely on information that he 16 provided to his friend. Id. 17 Jiang also argues that he did not have an opportunity to 18 elaborate on some of his explanations. This argument is 19 belied by the record. The IJ asked several clarifying 20 questions, to which Jiang provided nonresponsive answers. As 21 noted above, when asked to clarify what he meant by a 226 “sponsoring church,” Jiang was first unresponsive, then 1 conceded that he did not know what the sponsoring church was. 2 Although Jiang argues that his “ignorance” regarding the 3 sponsoring church is reasonable because underground church 4 activities are loosely organized, he did not explain this to 5 the IJ, who was permitted to infer that Jiang was generally 6 unfamiliar with underground churches. See Wensheng Yan v. 7 Mukasey , 509 F.3d 63, 67 (2d Cir. 2007) (holding that, so 8 long as IJ’s finding is “tethered to record evidence, and 9 there is nothing else in the record from which a firm 10 conviction of error could properly be derived,” we will not 11 disturb that finding); Siewe v. Gonzales , 480 F.3d 160, 169 12 (2d Cir. 2007) (“So long as an inferential leap is tethered 13 to the evidentiary record, we will accord deference to the 14 finding”). 15 The IJ also reasonably relied on Jiang’s failure to 16 submit reasonably available corroborating evidence. See Biao 17 Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (holding 18 that asylum applicant’s failure to corroborate his testimony 19 may bear on his credibility, “because the absence of 20 corroboration in general makes an applicant unable to 21 rehabilitate testimony that has already been called into 227 question.”). The record contains little evidence that Jiang 1 practices Catholicism: the letter from China did not confirm 2 his practice after 2011 and J iang’s only letter regarding his 3 practice in the United States predated his hearing by more 4 than two years. See 8 U.S.C. § 1158(b)(1)(B)(ii); Biao Yang , 5 496 F.3d at 273. Jiang’s additional evidence was untimely. 6 The IJ was not required to credit Jiang’s explanation that he 7 forgot to bring the documents to his attorney’s office: 8 because the documents were dated Apr il 2014, Jiang had almost 9 two years to submit them, but failed to file them until the 10 day of the hearing. See Majidi , 430 F.3d at 80. 11 Given the inconsistency regarding past events in China, 12 Jiang’s unresponsive testimony, and his lack of reliable 13 corroboration, the totality of the circumstances supports 14 the adverse credibility determination. See 8 U.S.C. 15 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 166-67. The 16 adverse credibility determination is dispositive of asylum, 17 withholding of removal, and CAT relief because all three 18 claims rely on Jiang’s credibility. See Paul v. Gonzales , 19 444 F.3d 148, 156-57 (2d Cir. 2006). We do not reach the 20 alternative finding that Jiang failed to establish a well21 founded fear of future persecution because the adverse 228 credibility determination is dispositive of Jiang’s claims. 1 INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general 2 rule courts and agencies are not required to make findings 3 on issues the decision of which is unnecessary to the 4 results they reach.”). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our rev iew, any stay of removal 7 that the Court previously granted in this petition is VACATED, 8 and any pending motion for a stay of removal in this petition 9 is DISMISSED as moot. Any pending request for oral argument 10 in this petition is DENIED in accordance with Federal Rule of 11 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 12 34.1(b). 13

FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court 16