19

- 2331 Dong v. Garland BIA La f orest , IJ A 206 295 117 

### 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 APP**  **ENDIX 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 a**  **t the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **4 t**  **h d**  **a y of**  **D e**  **c e**  **m b**  **e r**  **, two thousand**  **twenty**

  4
** one**
**.** 5 6 **PRESENT:** 7 **ROSEMARY S. POOLER,** 8 **RAYMOND J. LOHIER, JR.,** 9 **SUSAN L. CARNEY,** 10 **Circuit Judges.** 11

**_____________________________________** 12 13 **WENGE DONG ,**  14 **Petitioner ,**  15 16
**v. 19** 

**- 2331**  17 **NAC** 18 **MERRICK B. GARLAND, UNITED**  19 **STATES ATTORNEY GENERAL**  **,** 20 **R espondent** 

**. 1**  21

**_____________________________________** 22 23 **FOR PETITIONER :**  Zhen Liang Li , Esq. , New 24 York , NY. 25 26

1 The Clerk of Court is respectfully directed to amend the caption as set forth above.2 **FOR RESPONDENT:** Brian Boynton, Acting Assistant 1 Attorney General; Civil Division, 2 Paul Fiorino , Senior Litigation 3 Counsel ; Judith R. O’Sullivan , 4 Trial Attorney , Office of 5 Immigration Litigation , United 6 States Department of Justice, 7 Washington, DC. 8 9 U PON DUE CONSIDERATION of this petition for review of a 10
Board of Immigration Appeals (“BIA”) decision, it is hereby 11
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 12

is DENIED. 13

Petitioner Wen ge Dong , a native and citizen of the 14
People’s Republic of China , seeks review of a June 21 , 2019 15
decision of the BIA affirming a February 1 , 2018 decision of 16

an I mmigration Judge (“IJ”) d enying Dong’s application for 17
asylum, withholding of removal , and relief under the 18
Convention Against Torture (“CAT”). In re Wenge Dong , No. 19

A 206 295 117 (B.I.A. June 21 , 2019 ), aff’g No. A 206 295 117 20
(Immig. Ct. N.Y. City Feb. 1 , 2018 ). We assume the parties’ 21
familiarity with the underlying facts and procedural his tory. 22
Under the circumstances, we have consider ed both the IJ’s 23
and the BIA’s opinions “for the sake of completeness.” 24
Wangchuck v. Dep’t of Homeland Security , 448 F.3d 524, 528 25

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

est ablished. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 273 Sessions , 891 F.3d 67, 76 (2d Cir. 2018). 1
“Considering the totality of the circumstances, and all 2
relevant factors, a trier of fact may base a credibility 3
determination on the demeanor, ca ndor, or responsiveness of 4
the applicant or witness, the inherent plausibility of the 5
applicant’s or witness’s account, the consistency between the 6
applicant’s or witness’s written and oral statements . . . , 7
[and] the internal consistency of each such sta tement . . . 8
without regard to whether an inconsistency, inaccuracy, or 9
falsehood goes to the heart of the applicant’s claim, or any 10

other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see 11
also Xiu Xia Lin v. Mukasey , 534 F.3d 162, 163

– 64 (2d Cir. 12

2008). “We defer . . . to an IJ’s credibility determination 13
unless, from the totality of the circumstances, it is plain 14

that no reasonable fact

- finder could make such an adverse 15
credibility ruling.” Xiu Xia Lin , 534 F.3d a t 167; accord 16
Hong Fei Gao , 891 F.3d at 76

- 77

. 17
Applying these standa r ds, we conclude that s ubstantial 18
evidence supports the agency’s determination that Dong was 19

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

and beat him for organizing protests against a corrupt 21
employer who had laid him off and later terminated his 224 employment

. First, t he IJ found Dong’s demeanor evasive. See 1

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

the record, wh ich shows that Dong provided unresponsive 3
answers to questions about his alleged beating, gave 4
contradictory and nonsensical answers to questions about how 5

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

after his termination , and avoided answering questions as to 7
whether he had noticed inaccuracies in his employer’s 8
termination notice. Accordingly, we afford “particular 9
deference” to the IJ’s demeanor finding. Jin Chen v. U.S. 10
Dep’t of Justice , 426 F.3d 104, 113 (2d Cir. 2005). 11

Second, t he IJ’s demeanor finding and adverse credibility 12
determination as a whole were further supported by Dong’s 13

inconsistent evidence regarding when he last organized a 14

protest against his employer and what job he had held at his 15
employer’s place of business

. See 8 U.S.C. 16

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

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

more confident in our review of observations about an 19
applicant’s demeanor where, as here, they are supported by 20
specific examples of inconsistent testimony.”). Dong did not 21
compellingly explain these inconsistencies. See 8 U.S.C. 225 § 1158(b)(1)(B)(iii); Majidi v. Gonzales , 430 F.3d 77, 80 (2d 1
Cir. 2005) (“A petitioner must do more than offer a plausible 2
explanation for his inconsistent statements to secure relief; 3

he must demonstrate that a reasonable fact

- finder would be 4
compelled to credit his testimony.” (internal quotations 5

omitted)). 6

Next, h aving questioned Dong ’s credibility, the agency 7

reasonab ly relied further on his failure to rehabilitate his 8
testimony with reliable corroborating evidence. See Biao 9
Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) ( “An 10
applicant’s failure to corroborate his or her testimony may 11

bear on credibility, because the absence of corroboration in 12
general makes an applicant unable to rehabilitate testimony 13
that has already been called into question.” )

. T he IJ 14
reasonably declined to credit unsworn letters from his mother 15

and coworker , because neit her was subject to cross

16

examination. See Y.C. v. Holder , 741 F.3d 324, 334 (2d Cir. 17

2013); see also In re H

- L

- H

- & Z

- Y

- Z

- , 25 I. & N. Dec. 209, 18
215 (B.I.A. 2010) (finding that letters from alien’s friends 19
and family were not substantial support for alien ’s claims 20
because they were from interested witnesses not subject to 21

cross - examination), overruled on other grounds by Hui Lin 226 Huang v. Holder , 677 F.3d 130, 133

– 38 (2d Cir. 2012). 1

Further, the IJ was not compelled to credit the Public 2
Security Administra tive Penalty Decision or the certificate 3
provided by Dong’s doctor

. S ee Y.C. , 741 F.3d at 332. 4

T he se demeanor, inconsistency , and corroboration 5
findings amount to substantial evidence supporting the 6
agency’s adverse credibility determination. See 8 U.S.C. 7

§ 1158(b)(1)(B)(iii). That determination i s dispositive of 8
Dong’s claims for asylum, withholding of removal, and CAT 9

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

. See Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d 11

Cir. 2006). 12
For the foregoing reasons, the petition for review is 13

DENIED

. 14

FOR THE COURT: 15 Catherine O ’Hagan Wolfe , 16 Clerk of Court 17