17-1706 Yang v. Whitaker BIA Nelson, IJ A200 177 805 

### 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 28 th**  **day of December, two thousand eighteen.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER,** 7 **RENNA RAGGI,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 **FENG YANG,** 12 Petitioner **,** 13 14 **v. 17-1706** 15 **NAC** 16 **MATTHEW G. WHITAKER,** 17 **UNITED STATES ATTORNEY GENERAL,** 18 Respondent **.** 19

**_____________________________________** 20 21 **FOR PETITIONER:** Mike P. Gao, Flushing, NY. 22 23 **FOR RESPONDENT:** Chad A. Readler, Principal Deputy 24 Assistant Attorney General; Paul 25 Fiorino, Senior Litigation 26 Counsel; Judith R. O’Sullivan, 27 Trial Attorney, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 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 DISMISSED in part and DENIED in part. 4 Petitioner Feng Yang, a native and citizen of the 5 People’s Republic of China, seeks review of a May 19, 2017, 6 decision of the BIA affirming a September 20, 2016, decision 7 of an Immigration Judge (“IJ”) denying Yang’s application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Feng Yang, No. 10 A200 177 805 (B.I.A. May 19, 2017), aff’g No. A200 177 805 11 (Immig. Ct. N.Y. City Sept. 20, 2016). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 We have reviewed the IJ’s decision as supplemented by 15

the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d 16 Cir. 2005). The applicable standards of review are well 17 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 18 Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008)(per curiam); 19 Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 20

**I. Asylum**  21 An asylum applicant must “demonstrate[] by clear and 22 convincing evidence that the application has been filed 233 within 1 year after the date of the alien’s arrival in the 1 United States,” or “either the existence of changed 2 circumstances which materially affect the applicant’s 3 eligibility for asylum or extraordinary circumstances 4 relating to the delay in filing an application.” 8 U.S.C. § 5 1158(a)(2)(B), (D). Our jurisdiction to review the agency’s 6 finding that an application was untimely is limited to 7 “constitutional claims or questions of law.” Id. 8 § 1252(a)(2)(D); see id. § 1158(a)(3); Joaquin-Porras v. 9

Gonzales , 435 F.3d 172, 177-78 (2d Cir. 2006). 10 We dismiss the petition as to asylum for lack of 11 jurisdiction. Yang claimed that he did not apply for asylum 12 on arriving in the United States because he did not speak 13 English and had to repay his snakehead. Yang does not 14 challenge the agency’s fa ctual determination that the 15 language barrier and his outstanding debt were not 16 extraordinary circumstances excusing a ten-year delay. 17 Although he now contends that political activities in the 18 United States constitute a changed circumstance, this 19 argument is unexhausted, see Lin Zhong v. U.S. Dep’t of 20 Justice , 480 F.3d 104, 122 (2d Cir. 2007), and the explanation 21 implicates the adverse credibility determination, which is an 224 unreviewable factual determination in this context and, as 1 discussed below, is supported by substantial evidence. 2

**II. Adverse Credibility Determination**  3 “Considering the totality of the circumstances, . . . a 4 trier of fact may base a credibility determination on the 5 demeanor, candor, or responsiveness of the applicant . . . , 6 the consistency between the applicant’s or witness’s written 7 and oral statements . . . , the internal consistency of each 8 such statement, the consistency of such statements with other 9 evidence of record . . . , and any inaccuracies or falsehoods 10 in such statements, . . . or any other relevant factor.” 8 11 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 F.3d 12 at 163-64. “We defer . . . to an IJ’s credibility 13 determination unless . . . it is plain that no reasonable 14 fact-finder could make such an adve rse credibility ruling.” 15 Xiu Xia Lin , 534 F.3d at 167. Substantial evidence supports 16 the agency’s determination that Yang was not credible. 17 Yang testified that he left China in 2000 because the 18 Chinese authorities were looking for him because they had 19 learned that he planned to petition the government after the 20 demolition of his family’s home. But Yang both omitted this 21 event from his written statement and inconsistently stated 22 that he left China for a better future because of his family’s 235 difficult financial circumstances. The IJ reasonably relied 1 on the inconsistency, which called into question why Yang 2 left China and whether there was any reason that he would be 3 on the Chinese government’s radar. See id. at 166-67 4 (explaining that “an IJ may rely on any inconsistency or 5 omission”); Ming Zhang v. Holder , 585 F.3d 715, 726 (2d Cir. 6 2009) (“Omissions that go to a heart of an applicant’s claim 7 can form the basis for an adverse credibility determination.” 8 (brackets and citation omitted)). 9 The agency was not required to accept Yang’s explanations 10 for the omission because they do not explain why his written 11 statement says he came to the United States for a better 12 future given his family’s finances. See Majidi v. Gonzales , 13 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more 14 than offer a plausible explanation for his inconsistent 15 statements to secure relief; he must demonstrate that a 16 reasonable fact-finder would be compelled to credit his 17 testimony.” (internal quotation marks and citations 18 omitted)). 19 The adverse credibility determination is further 20 supported by the IJ’s finding that Yang’s testimony lacked 21 detail, in that he was unable to elaborate on the articles he 22 wrote, and the IJ’s observations of his demeanor, to which we 236 defer. See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that, 1 in considering credibility, an IJ may rely on “demeanor, 2 candor, or responsiveness”); Li Hua Lin v. U.S. Dep’t of 3 Justice , 453 F.3d 99, 109 (2d Cir. 2006) (giving “particular 4 deference” to demeanor findings (internal quotation marks 5 omitted)). Although Yang argues that his nervousness was 6 normal and the IJ’s demeanor finding was speculative, the IJ 7 reasonably relied on the fact that, despite repeated 8 questioning, Yang could not describe the contents of his own 9 articles. See Li Hua Lin , 453 F.3d at 109. 10 The agency also reasonably found that Yang failed to 11 rehabilitate his testimony with reliable corroborating 12 evidence. “An applicant’s failure to corroborate his or her 13 testimony may bear on credibility, because the absence of 14 corroboration in general makes an applicant unable to 15 rehabilitate testimony that has already been called into 16 question.” Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 17 2007)(per curiam). Where an asylum applicant bases a claim 18 solely on activities in the United States, the applicant must 19 show that the Chinese government is aware or likely to become 20 aware of those activities. Hongsheng Leng v. Mukasey , 528 21 F.3d 135, 138 (2d Cir. 2008)(per curiam). As the IJ found, 22 Yang provided no evidence to corroborate his testimony that 237 Chinese authorities told his parents that they were aware of 1 his prodemocracy activities in the United States. 2 Accordingly, substantial evidence supports the agency’s 3 adverse credibility determination. See 8 U.S.C. 4 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 165-66. The 5 adverse credibility determination is dispositive because 6 withholding of removal and CAT relief relied on Yang’s 7 credibility and are based on the same factual predicate. See 8

Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). Hence, 9 we do not reach the agency’s alternative burden-of-proof 10 finding. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As 11 a general rule courts and agencies are not required to make 12 findings on issues the decision of which is unnecessary to 13 the results they reach.”). 14 For the foregoing reasons, the petition for review is 15 DISMISSED in part and DENIED in part. 16

FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court 19