19-2331

Dong v. Garland

BIA

Laforest, IJ

A206 295 117

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 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 14th 4 day of December, two thousand twenty5 one.

6

7 PRESENT:

8 ROSEMARY S. POOLER,

9 RAYMOND J. LOHIER, JR.,

10 SUSAN L. CARNEY,

11 Circuit Judges.

12 _____________________________________

13

14 WENGE DONG,

15 Petitioner,

16

17 v. 19-2331

18 NAC

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

Respondent.1 21

22 _____________________________________

23

24 FOR PETITIONER: Zhen Liang Li, Esq., New 

25 York, NY.

26

1 The Clerk of Court is respectfully directed to amend the caption as set 

forth above. 
2

1 FOR RESPONDENT: Brian Boynton, Acting Assistant 

2 Attorney General; Civil Division, 

3 Paul Fiorino, Senior Litigation 

4 Counsel; Judith R. O’Sullivan, 

5 Trial Attorney, Office of 

6 Immigration Litigation, United 

7 States Department of Justice, 

8 Washington, DC.

9

10 UPON DUE CONSIDERATION of this petition for review of a 

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

12 ORDERED, ADJUDGED, AND DECREED that the petition for review 

13 is DENIED.

14 Petitioner Wenge Dong, a native and citizen of the 

15 People’s Republic of China, seeks review of a June 21, 2019

16 decision of the BIA affirming a February 1, 2018 decision of 

17 an Immigration Judge (“IJ”) denying Dong’s application for 

18 asylum, withholding of removal, and relief under the 

19 Convention Against Torture (“CAT”). In re Wenge Dong, No. 

20 A206 295 117 (B.I.A. June 21, 2019), aff’g No. A206 295 117 

21 (Immig. Ct. N.Y. City Feb. 1, 2018). We assume the parties’ 

22 familiarity with the underlying facts and procedural history.

23 Under the circumstances, we have considered both the IJ’s 

24 and the BIA’s opinions “for the sake of completeness.” 

25 Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528 

26 (2d Cir. 2006). The applicable standards of review are well 

27 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 
3

1 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 

2 “Considering the totality of the circumstances, and all 

3 relevant factors, a trier of fact may base a credibility 

4 determination on the demeanor, candor, or responsiveness of 

5 the applicant or witness, the inherent plausibility of the 

6 applicant’s or witness’s account, the consistency between the 

7 applicant’s or witness’s written and oral statements . . . , 

8 [and] the internal consistency of each such statement . . . 

9 without regard to whether an inconsistency, inaccuracy, or 

10 falsehood goes to the heart of the applicant’s claim, or any 

11 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see 

12 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 

13 2008). “We defer . . . to an IJ’s credibility determination 

14 unless, from the totality of the circumstances, it is plain 

15 that no reasonable fact-finder could make such an adverse 

16 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167; accord 

17 Hong Fei Gao, 891 F.3d at 76-77. 

18 Applying these standards, we conclude that substantial 

19 evidence supports the agency’s determination that Dong was 

20 not credible as to his claim that police in China detained 

21 and beat him for organizing protests against a corrupt 

22 employer who had laid him off and later terminated his 
4

1 employment. First, the IJ found Dong’s demeanor evasive. See

2 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is supported by 

3 the record, which shows that Dong provided unresponsive

4 answers to questions about his alleged beating, gave 

5 contradictory and nonsensical answers to questions about how 

6 he was able to recall in which month he started a new job 

7 after his termination, and avoided answering questions as to 

8 whether he had noticed inaccuracies in his employer’s 

9 termination notice. Accordingly, we afford “particular 

10 deference” to the IJ’s demeanor finding. Jin Chen v. U.S. 

11 Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005). 

12 Second, the IJ’s demeanor finding and adverse credibility 

13 determination as a whole were further supported by Dong’s 

14 inconsistent evidence regarding when he last organized a 

15 protest against his employer and what job he had held at his 

16 employer’s place of business. See 8 U.S.C. 

17 § 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dep’t of 

18 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still 

19 more confident in our review of observations about an 

20 applicant’s demeanor where, as here, they are supported by 

21 specific examples of inconsistent testimony.”). Dong did not 

22 compellingly explain these inconsistencies. See 8 U.S.C. 
5

1 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 80 (2d 

2 Cir. 2005) (“A petitioner must do more than offer a plausible

3 explanation for his inconsistent statements to secure relief; 

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

5 compelled to credit his testimony.” (internal quotations 

6 omitted)). 

7 Next, having questioned Dong’s credibility, the agency 

8 reasonably relied further on his failure to rehabilitate his 

9 testimony with reliable corroborating evidence. See Biao 

10 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 

11 applicant’s failure to corroborate his or her testimony may 

12 bear on credibility, because the absence of corroboration in 

13 general makes an applicant unable to rehabilitate testimony 

14 that has already been called into question.”). The IJ 

15 reasonably declined to credit unsworn letters from his mother 

16 and coworker, because neither was subject to cross17 examination. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 

18 2013); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 

19 215 (B.I.A. 2010) (finding that letters from alien’s friends 

20 and family were not substantial support for alien’s claims 

21 because they were from interested witnesses not subject to 

22 cross-examination), overruled on other grounds by Hui Lin 
6

1 Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012). 

2 Further, the IJ was not compelled to credit the Public 

3 Security Administrative Penalty Decision or the certificate

4 provided by Dong’s doctor. See Y.C., 741 F.3d at 332. 

5 These demeanor, inconsistency, and corroboration 

6 findings amount to substantial evidence supporting the 

7 agency’s adverse credibility determination. See 8 U.S.C. 

8 § 1158(b)(1)(B)(iii). That determination is dispositive of 

9 Dong’s claims for asylum, withholding of removal, and CAT 

10 relief because all three claims were based on the same factual 

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

12 Cir. 2006). 

13 For the foregoing reasons, the petition for review is 

14 DENIED.

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe,

17 Clerk of Court