15-3890 Jiang v. Lynch BIA Loprest, IJ A205 245 787 

### 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 **29 th**  **day of November, two thousand sixteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **ROBERT D. SACK,** 9 **PETER W. HALL,** 10 Circuit Judges. 11

**_____________________________________** 12 13 **JIAN JIANG,** 14 Petitioner **,** 15 16 **v. 15-3890** 17 **NAC** 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Ai Tong, New York, N.Y. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Greg D. 27 Mack, Senior Litigation Counsel; 28 Lisa Morinelli, Trial Attorney; 29 Office of Immigration Litigation, 30 United States Department of Justice, 31 Washington, D.C. 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 is 3

DENIED. 4 Petitioner Jian Jiang, a native and citizen of the People’s 5 Republic of China, seeks review of a November 23, 2015, decision 6 of the BIA affirming a June 12, 2014, decision of an Immigration 7 Judge (“IJ”) denying Jiang’s application for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Jian Jiang, No. A205 245 787 (B.I.A. 10 Nov. 23, 2015), aff’g No. A205 245 787 (Immig. Ct. N.Y. City 11 June 12, 2014). We assume the parties’ familiarity with the 12 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). The applicable standards of 16 review are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu 17 Xia Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). 18 For asylum applications like Jiang’s, governed by the REAL 19 ID Act, the agency may, “[c]onsidering the totality of the 20 circumstances,” base a negative credibility finding on an 21 asylum applicant’s demeanor and an inconsistency or omission 223 between the applicant’s statements and other record evidence. 1 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163-64, 2 166 n.3. “We defer . . . to an IJ’s credibility determination 3 unless, from the totality of the circumstances, it is plain that 4 no reasonable fact-finder could make such an adverse 5 credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. In the 6 present case, substantial evidence supports the adverse 7 credibility determination. 8 The agency reasonably based its credibility finding on 9 Jiang’s omission of his medical treatment for injuries he 10 sustained during his detention. See 8 U.S.C. 11 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 166-67 & n.3 (“An 12 inconsistency and an omission are . . . functionally 13 equivalent” for credibility purposes). Jiang claimed for the 14 first time on cross examination that he received medical 15 treatment following his release from detention, stating that 16 his mother twice took him to a local clinic to have his injuries 17 treated. Neither his direct testimony, his asylum 18 application, nor his mother’s supporting letter mention this 19 treatment. The agency was not compelled to accept Jiang’s 20 explanation that he did not realize he needed to include details 21 of what happened after his release from detention, especially 224 because his application addressed post-detention issues, such 1 as the requirement that he report to the police after his 2 release. Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) 3 (“A petitioner ‘must do more than offer a ”plausible” 4 explanation for his inconsistent statements to secure relief; 5 “he must demonstrate that a reasonable fact-finder would be 6 compelled to credit his testimony.”’” (quoting Zhou Yun Zhang 7

v. U.S. INS , 386 F.3d 66,76 (2d Cir. 2004))). 8 The adverse credibility determination is further supported 9 by the IJ’s conclusion that Jiang’s unresponsive testimony 10 reflected a lack of credibility. 8 U.S.C. 11 § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of Justice , 426 12 F.3d 104, 113 (2d Cir. 2005) (deferring to demeanor findings 13 “in recognition of the fact that the IJ’s ability to observe 14 the witness’s demeanor places [him] in the best position to 15 evaluate whether apparent problems in the witness’s testimony 16 suggest a lack of credibility or, rather, can be attributed to 17 an innocent cause such as difficulty understanding the 18 question.”). The record reflects that Jiang took an unusually 19 long pause when asked to explain the omission of his medical 20 treatment from his asylum application, and another pause after 21 the IJ prompted him to answer. His testimony regarding both 225 his experiences in China and his practice of Christianity in 1 the United States was brief and lacked detail. The IJ did not 2 rely solely on a general find ing of testimonial vagueness, as 3 Jiang argues, but rather took Jiang’s brief answers into account 4 along with the rest of the evidence in finding that he lacked 5 credibility. Cf. Shunfu Li v. Mukasey , 529 F.3d 141, 147-48 6 (2d Cir. 2008). 7 The agency also reasonably concluded that Jiang’s 8 corroborating evidence was insufficient to rehabilitate his 9 credibility. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 10 Cir. 2007). The agency determined that Jiang’s church 11 certificate and the letters from his mother and girlfriend were 12 entitled to diminished weight because the authors of these 13 documents were unavailable for cross examination and Jiang’s 14 mother and girlfriend were interested parties. “We defer to 15 the agency’s determination of the weight afforded to an alien’s 16 documentary evidence.” Y.C. v. Holder , 741 F.3d 324, 334 (2d 17 Cir. 2013). Additionally, Jiang’s mother’s letter did not 18 corroborate his testimony because it omitted the medical 19 treatment despite noting Jiang’s injuries. 20 Given the demeanor finding, the omission regarding Jiang’s 21 medical treatment, and the lack of corroborating evidence to 226 rehabilitate his claim of past persecution, the totality of the 1 circumstances supports the adverse credibility ruling. 8 2 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 3 Because Jiang’s claims were all based on the same factual 4 predicate, the adverse credibility determination is 5 dispositive of asylum, withholding of removal, and CAT relief. 6 Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our rev iew, any stay of removal 9 that the Court previously granted in this petition is VACATED, 10 and any pending motion for a stay of removal in this petition 11 is DISMISSED as moot. Any pending request for oral argument 12 in this petition is DENIED in accordance with Federal Rule of 13 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 14 34.1(b). 15

FOR THE COURT: 16 Catherine O = Hagan Wolfe, Clerk 17