17-545 Wang v. Sessions BIA Loprest, IJ A205 433 910 

### 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 United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 5 th**  **day of July, two thousand eighteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **PIERRE N. LEVAL,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XU WANG,** 13 Petitioner **,** 14 15 **v. 17-545** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Khagendra Gharti-Chhetry, New 23 York, NY. 24 25 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 26 Attorney General; Holly M. Smith, 27 Senior Litigation Counsel; Jesse 28 Lloyd Busen, Trial Attorney, 292 Office of Immigration Litigation, 1 United States Department of 2 Justice, Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Xu Wang, a native and citizen of the People’s 9 Republic of China, seeks review of a January 26, 2017 decision 10 of the BIA affirming a December 15, 2015 decision of an 11 Immigration Judge (“IJ”) denying Wang’s application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture (“CAT”). In re Xu Wang, No. A 205 14 433 910 (B.I.A. Jan. 26, 2017), aff’g No. A 205 433 910 15 (Immig. Ct. N.Y. City Dec. 15, 2015). We assume the parties’ 16 familiarity with the underlying facts and procedural history 17 in this case. 18 We have reviewed the decisions of both the IJ and the 19 BIA “for the sake of completeness.” Wangchuck v. Dep’t of 20

Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The 21 applicable standards of review are well established. See 22 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 233 162, 165-66 (2d Cir. 2008). The agency may, “[c]onsidering 1 the totality of the circumstances, . . . base a credibility 2 determination on the demeanor, candor, or responsiveness of 3 the applicant[,] . . . the consistency between the applicant’s 4 or witness’s written and oral statements[,] . . . the internal 5 consistency of each such statement, the consistency of such 6 statements with other evidence of record . . . and any 7 inaccuracies or falsehoods in such statements,” or “any other 8 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also 9 Xiu Xia Lin , 534 F.3d at 163-64. “We defer . . . to an IJ’s 10 credibility determination unless . . . it is plain that no 11 reasonable fact-finder could make such an adverse credibility 12 ruling.” Xiu Xia Lin , 534 F.3d at 167. Substantial evidence 13 supports the agency’s determination that Wang was not 14 credible. 15 The agency reasonably relied on inconsistencies within 16 Wang’s testimony and discrepancies between his testimony and 17 documentary evidence. 8 U.S.C. § 1158(b)(1)(B)(iii). Wang 18 testified that, during his d etention, he sustained injuries 19 to his left hand, left ring finger, and left bicep; he denied 20 any injuries to his left elbow. On further questioning, 214 however, he changed his answer to match the medical report, 1 which reflected injuries to his left elbow and left middle 2 finger. His responses also conflicted with his asylum 3 application, which suggested that he had sustained injuries 4 to more than one finger. When asked to show which finger was 5 injured, he hesitated before raising his right hand, not his 6 left, and isolating his right ring finger. These 7 inconsistencies alone provide substantial support for the 8 adverse credibility determination and completely undermine 9 Wang’s credibility about his alleged persecution. See Xian 10

Tuan Ye v. Dep’t of Homeland Sec. , 446 F.3d 289, 295 (2d Cir. 11 2006) (holding that material inconsistency relating to 12 central aspect of asylum claim provided substantial evidence 13 for adverse credibility determination). The IJ was not 14 required to accept Wang’s explanation that his left arm was 15 hurt more than his right arm, because it did not explain why 16 he identified his right hand as the one injured or resolve 17 his differing descriptions of his injuries. See Majidi v. 18

Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 19 do more than offer a plausible explanation for his 20 inconsistent statements to secure relief; he must demonstrate 215 that a reasonable fact-finder would be compelled to credit 1 his testimony.” (quotation marks omitted) (emphasis in 2 original)). 3 Moreover, the agency’s demeanor finding—to which we 4 defer—bolsters the adverse credibility determination. 8 5 U.S.C. § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of 6 Justice , 453 F.3d 99, 109 (2d Cir. 2006). The record supports 7 the IJ’s conclusion that Wang’s demeanor shifted on cross8 examination, in that he gave unresponsive replies to 9 questions about how he knew to report to the police after his 10 release from his detention and about how many times the police 11 visited his home in China after his release. See Xusheng Shi 12

v. BIA , 374 F.3d 64, 66 (2d Cir. 2004) (upholding IJ’s finding 13 that generalized or non-responsive answers reflected 14 memorized script); Shu Wen Sun v. BIA , 510 F.3d 377, 381 (2d 15 Cir. 2007) (finding applicant was unresponsive in manner 16 suggesting evasiveness, rather than nervousness or difficulty 17 comprehending proceedings). 18 Finally, the agency reasonably found that Wang failed to 19 rehabilitate his testimony with reliable corroborating 20 evidence. “An applicant’s failure to corroborate his or her 216 testimony may bear on credibility, because the absence of 1 corroboration in general makes an applicant unable to 2 rehabilitate testimony that has already been called into 3 question.” Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 4 2007). As the IJ found, Wang failed to corroborate his 5 practice of Christianity in the United States by submitting 6 a letter from the U.S. church where he was baptized. The IJ 7 was not required to accept Wang’s explanation that he lost 8 the letter because it does not resolve why he did not ask for 9 another copy or a new letter. See Majidi , 430 F.3d at 80. 10 Moreover, although Wang submitted letters from his mother and 11 a fellow churchgoer to corroborate his practice of 12 Christianity and past persecution in China, the letters were 13 unsworn statements prepared for the purpose of litigation by 14 parties, at least one of whom—his mother—was an interested 15 witness, not subject to cross examination. See Y.C. v. 16

Holder , 741 F.3d 324, 334 (2d Cir. 2013) (deferring to 17 agency’s decision to give limited weight to letter from 18 applicant’s spouse in China). And the IJ was not compelled 19 to credit the letters because they could not resolve the 20 credibility issues in Wang’s own testimony, particularly 217 regarding his injuries. Biao Yang , 496 F.3d at 273. 1 Given the inconsistent testimony, demeanor issues, and 2 the absence of corroborating eviden ce independent of Wang’s 3 own credibility, the adverse credibility determination is 4 supported by substantial evidence. See 8 U.S.C. 5 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 165-66. The 6 adverse credibility determination is dispositive of asylum, 7 withholding of removal, and CAT relief because all three 8 claims rely on Wang’s credibility. See Paul v. Gonzales , 444 9 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, 20 Clerk of Court 21