19-1714

Jia-Tao v. Wilkinson

BIA 

Segal, IJ

A206 429 050

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 for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the

2nd 4 day of March, two thousand twenty-one.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 SUSAN L. CARNEY,

9 RICHARD J. SULLIVAN,

10 Circuit Judges.

11 _____________________________________

12

13 WENG JIA-TAO, 

14 Petitioner,

15

16 v. 19-1714

17 NAC

18 ROBERT M. WILKINSON, ACTING UNITED 

19 STATES ATTORNEY GENERAL,

Respondent.1 20

21 _____________________________________

22

23 FOR PETITIONER: John Son Yong, Esq.

24 New York, NY.

25

26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

27 General; Anthony C. Payne, Assistant 

28 Director; Joseph D. Hardy, Trial

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General

Robert M. Wilkinson is automatically substituted for former Acting Attorney 

General Jeffrey A. Rosen as Respondent.
1 Attorney, Office of Immigration 

2 Litigation, United States 

3 Department of Justice, Washington, 

4 DC.

5

6 UPON DUE CONSIDERATION of this petition for review of a 

7 Board of Immigration Appeals (“BIA”) decision, it is hereby 

8 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

9 DENIED.

10 Petitioner Weng Jia-Tao, a native and citizen of the 

11 People’s Republic of China, seeks review of a May 28, 2019,

12 decision of the BIA affirming a January 10, 2018, decision of 

13 an Immigration Judge (“IJ”) denying Jia-Tao’s application for 

14 asylum, withholding of removal, and relief under the Convention 

15 Against Torture (“CAT”). In re Weng Jia-Tao, No. A206 429 050 

16 (B.I.A. May 28, 2019), aff’g No. A206 429 050 (Immig. Ct. N.Y.C. 

17 Jan. 10, 2018). We assume the parties’ familiarity with the

18 underlying facts and procedural history.

19 Under the circumstances, we have reviewed both the IJ’s and 

20 the BIA’s opinions under the substantial evidence standard. 

21 See Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006); see 

22 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 

23 67, 76 (2d Cir. 2018). “Considering the totality of the 

24 circumstances, and all relevant factors, a trier of fact may 

25 base a credibility determination on . . . the consistency 

26 between the applicant’s or witness’s written and oral 
3

1 statements . . . , the internal consistency of each such 

2 statement, [and] the consistency of such statements with other 

3 evidence of record . . . without regard to whether an 

4 inconsistency, inaccuracy, or falsehood goes to the heart of 

5 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 

6 defer . . . to an IJ’s credibility determination unless, from 

7 the totality of the circumstances, it is plain that no 

8 reasonable fact-finder could make such an adverse credibility 

9 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 

10 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial 

11 evidence supports the agency’s determination that Jia-Tao was 

12 not credible as to his claim that police detained and beat him 

13 for practicing Christianity. 

14 The IJ reasonably relied on Jia-Tao’s inconsistent 

15 statements about how many times he was arrested. See 8 U.S.C. 

16 § 1158(b)(1)(B)(iii). Jia-Tao’s statements throughout the 

17 proceedings varied as to whether he was arrested once or twice. 

18 This inconsistency provides substantial evidence for the 

19 adverse credibility determination because it relates to the 

20 sole allegation of past persecution. See Xian Tuan Ye v. DHS, 

21 446 F.3d 289, 295 (2d Cir. 2006) (holding that “material 

22 inconsistency in an aspect of . . . [applicant’s] story that 

23 served as an example of the very persecution from which he sought 
4

1 asylum . . . afforded substantial evidence to support the 

2 adverse credibility finding” (internal quotation marks 

3 omitted)). The agency was not required to credit Jia-Tao’s 

4 retractions of the inconsistent statements as they did not 

5 resolve the inconsistency, which was repeated throughout the 

6 proceedings. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 

7 2005) (“A petitioner must do more than offer a plausible 

8 explanation for his inconsistent statements to secure relief; 

9 he must demonstrate that a reasonable fact-finder would be 

10 compelled to credit his testimony.” (internal quotation marks 

11 omitted)). 

12 The adverse credibility determination is bolstered by a 

13 second inconsistency: his and his wife’s written statements 

14 reflected that they began considering him leaving China before 

15 his arrest, but he testified and confirmed that they did not 

16 discuss him leaving until after his arrest. See Likai Gao v. 

17 Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single 

18 inconsistency might preclude an alien from showing that an IJ 

19 was compelled to find him credible. Multiple inconsistencies 

20 would so preclude even more forcefully.”). The IJ was 

21 justified in rejecting Jia-Tao’s varied explanations for this 

22 inconsistency. See Majidi, 430 F.3d at 80. The adverse 

23 credibility determination is dispositive because asylum, 
5

1 withholding of removal, and CAT relief are based on the same 

2 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 

3 (2d Cir. 2006). 

4 For the foregoing reasons, the petition for review is 

5 DENIED. All pending motions and applications are DENIED and 

6 stays VACATED.

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe,

9 Clerk of Court