19-1714

Jia-Tao v. Wilkinson BIA Segal, IJ A206 429 050 

### UN I T E D S TAT E S C OURT O F AP PEAL S FOR T HE S E C OND C I RC U I T 

# A M ENDED SU

M M A R Y OR DER

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 GOVERNE D BY FEDERAL RULE OF APPELLAT E PROCE D URE 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 2 At a stated term of the United States Court of Appeals 3 for the Second Circuit, held at the Thurgood Marshall United 4 States Courthouse, 40 Foley Square, in the City of New York, 5 on the 8 th

day of March, two thousand twenty-one. 6 7 PRESENT: 8 JOSÉ A. CABRANES, 9 SUSAN L. CARNEY, 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12

_____________________________________ 13 14 WENG JIA-TAO, 15 Petitioner , 16 17 v. 19-1714 18 NAC 19 ROBERT M. WILKINSON, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent . 1 22

_____________________________________ 23 24 FOR PETITIONER: John Son Yong, Esq. 25 New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; Anthony C. Payne, 29 Assistant Director; Joseph D. 30 Hardy, Trial Attorney, Office of 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 Immigration Litigation, United

2 States Department of Justice, 3 Washington, DC. 4 5 UPON DUE CONSIDERATION of this petit i o n for review of a 6 Board of Immigration Appeals (“BIA”) de cision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for revi e w 8 is DENIED. 9 Petitioner Weng Jia-Tao, a native and citizen of the 10 People’s Republic of China, seeks review of a May 28, 2019 11 decision of the BIA affirming a January 10, 2018 decision of 12 an Immigration Judge (“IJ”) denying Jia-Tao’s application 13 for asylum, withholding of removal, and relief under the 14 Convention Against Torture (“CAT”). In re Weng Jia-Tao , No. 15 A206 429 050 (B.I.A. May 28, 2019), aff’g No. A206 4 2 9 0 5 0 16 (Immig. Ct. N.Y.C. Jan. 10, 2018). We assume the parties’ 17 familiarity with the underlyi n g facts and procedural 18 history. 19 Under the circumstances, w e have reviewed both the IJ’s 20 and the BIA’s opinions under the substantial evidence 21 standard. See Wan gc h u ck v. DHS , 448 F.3d 524, 528 (2d Cir. 22 2006); see 8 U.S.C. § 1252(b)(4)(B) ; Ho ng Fei Gao v. 23 Sessions , 891 F.3d 67, 76 (2d Cir. 2018). “Considering the 24 totality of the circumstances, and all relevant facto r s , a 25 trier of fact may base a cr e d i b il i t y determination on . . . 21 the consistency between the applicant’s or witness’s written

2 and oral statements . . . , the internal consistency of each such statement, [and] the c onsistency of such statements 3 with other evidence of record . . . without regard to 4 5 whether an incons istency, inaccuracy, or falsehood goes to 6 the heart of the a p p licant’s claim.” 8 U.S.C. 7 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 8 credibility determination unless, fro m the totality of the 9 cir c u m s tances, it is plain that no reasonable fact-finder 10 could make such an adverse credibility ruling.” Xiu Xia Lin 11 v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); accord Hong 12 Fei Gao , 891 F.3d at 76. Substantial evidence supports the 13 agency’s determination that Jia-Tao was not credibl e a s to 14 his claim that poli ce d e t a ined and beat him for practicing 15 Christianity. 16 The IJ reasonably relied on Jia

- T a o’s inconsistent 17 statements about how many times he was arrested. See 8 U.S.C. § 18 1158(b)(1)(B)(iii). Jia-Tao’s statements 19 through o u t the proceedings varied as to whether he was 20 arrested once or twice. This incon s i s tency provides 21 substantial evidence for the adverse credibility 22 determination because it relates to the sole allegati o n of 23 past persecution. See Xi a n Tuan Ye v. DHS , 446 F.3d 289, 31 295 (2d Cir. 2006) (holding that “material i nconsistency in

2 an aspect of . . . [applicant’s] story that ser v e d as an 3 example of the very p e r s ecution from which he sought asylum 4 . . . afforded substantial evidence to support th e adv e r se 5 credibility finding” (internal quotation marks omitted)). 6 The agency was n ot required to credit Jia-Tao’s retractions 7 of the inco n si st e n t statements as they did not resolve the 8 inconsistency, which was repeated throughout the 9 proceedings. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d 10 Cir. 2005) (“A petitioner must do more than offer a 11 plausible explanation for his inc on s istent statements to 12 secure relief; he must de m o n strate that a reasonable fact13 finder would be compelled to credit his testim ony.” 14 (internal quotation marks omitted)). 15 The adverse credibility determinatio n is bolstered by a 16 second inconsistenc y : his and his wife’s written statements 17 reflected that they began c o n s i dering him leaving China 18 before his arrest, but he testified and confirmed that t h e y 19 did not discuss him leaving until after his arrest. See 20 Likai Gao v . Barr , 968 F.3d 137, 145 n.8 (2d Cir. 2020) 21 (“[E]ven a single inconsistency might preclude an alien from 22 showing that an IJ w a s c ompelled to find him credible. 23 Multiple inconsistencies would so preclude even m o re 41 forcefully.”). The IJ was justified in reje cting Jia-Tao’s

2 varied explanations for this inconsistency. See Majidi , 430 3 F.3d at 80 . T h e adverse credibility determination is 4 dispositive because asylum, withholding o f removal, and CAT 5 relief are based on the same factual predicate. See Paul v. 6 Gonzales , 444 F.3d 148, 156–57 (2d Cir. 2006). 7 For the f o r e g o ing reasons, the petition for review is 8 DENIED. All pending motions and applications are DENIED and 9 stays VACATED. 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court

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