16-2644 Wang v. Sessions BIA Laforest, IJ A205 270 818 

### 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 the29th** 3 **29 th**  **day of November, two thousand seventeen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **GERARD E. LYNCH,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **ZONG YI WANG,** 13 Petitioner **,** 14 15 **v. 16-2644** 16 **NAC** 17 **JEFFERSON B. SESSIONS, III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Marta Bachynska, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Anthony C. Payne, 26 Assistant Director; Kathleen Kelly 27 Volkert, 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 is 3

DENIED. 4 Petitioner Zong Yi Wang, a native and citizen of the 5 People’s Republic of China, seeks review of a July 6, 2016, 6 decision of the BIA affirming a June 17, 2015, decision of an 7 Immigration Judge (“IJ”) denying Wang’s application for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Zong Yi Wang, No. A 205 270 818 (B.I.A. 10 July 6, 2016), aff’g No. A 205 270 818 (Immig. Ct. N.Y. City June 11 17, 2015). 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 “for the sake of completeness.” 15 Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 16 2006). 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). 19 “Considering the totality of the circumstances, and all 20 relevant factors, [an IJ] may base a credibility determination 21 on the demeanor, candor, or responsiveness of the applicant 223 . . ., the consistency between the applicant’s . . . written 1 and oral statements . . . , the internal consistency of each 2 such statement, [and] the consistency of such statements with 3 other evidence of record . . . without regard to whether an 4 inconsistency, inaccuracy, or falsehood goes to the heart of 5 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see 6 also Xiu Xia Lin , 534 F.3d at 163-64, 167. “We defer . . . to 7 an IJ’s credibility determination unless . . . it is plain that 8 no reasonable fact-finder could make such an adverse 9 credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. 10 Substantial evidence supports the agency’s determination that 11 Wang was not credible. 12 “We give particular deference to credibility 13 determinations that are based on the adjudicator’s observation 14 of the applicant’s demeanor, in recognition of the fact that 15 the IJ’s ability to observe t he witness’s demeanor places her 16 in the best position to evaluate whether apparent problems in 17 the witness’s testimony suggest a lack of credibility or, 18 rather, can be attributed to an innocent cause such as 19 difficulty understanding the question.” Jin Chen v. U.S. Dep’t 20 of Justice , 426 F.3d 104, 113 (2d Cir. 2005). We defer to the 21 agency’s demeanor finding here because the IJ provided several 224 specific examples of Wang’s hesitancy and nonresponsive 1 answers, and these examples are supported by the record. Cf. 2 Li Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 3 2006) (“We can be still more confident in our review of 4 observations about an applicant’s demeanor where, as here, they 5 are supported by specific examples of inconsistent 6 testimony.”). 7 Wang took long pauses and had difficulty answering 8 questions on direct and cross examination regarding his 9 persecution, his church attendance in China, his police 10 interrogation, and the sermons he heard at his churches in China 11 and the United States. Wang also testified inconsistently, 12 first stating that, at the time of his arrest, his only son was 13 almost one year old, but then acknowledging that his son was 14 born four days before the alleged arrest. The agency 15 reasonably concluded that this inconsistency called into 16 question whether Wang had actually lived through the events he 17 described. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 18 534 F.3d at 166-67. And contrary to Wang’s argument that he 19 had no opportunity to explain this inconsistency, the record 20 reflects that Government counsel confronted Wang about it, and 21 his explanation was that he had trouble remembering. The IJ 225 was not compelled to accept that explanation, particularly 1 because Wang also testified that it was a traumatic experience 2 to be separated from his newborn child while he was detained. 3 Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner 4 must do more than offer a plausible explanation for his 5 inconsistent statements to secure relief; he must demonstrate 6 that a reasonable fact-finder would be compelled to credit his 7 testimony.” (quotation marks omitted)). 8 Wang now argues, for the first time, that his mistake is 9 attributable to the Chinese practice of considering a newborn 10 to be a year old. As the Government argues, this explanation 11

was not exhausted because neither Wang nor his attorney provided 12 this explanation to the IJ or on appeal to the BIA. Foster v. 13

U.S. INS , 376 F.3d 75, 78 (2d Cir. 2004). And Wang has not 14 provided an affidavit or objective evidence to support his 15 attorney’s assertion. See INS v. Phinpathya , 464 U.S. 183, 188 16 n.6 (1984) (an attorney’s statements in a brief are not 17 evidence). Moreover, even crediting the theory, the 18 explanation does not work because it does not resolve why Wang 19 gave his son’s age as almost one year. See Majidi , 430 F.3d 20

at 80. Nor does Wang’s explanation (that he was nervous and made 21 innocent mistakes) compel a contrary conclusion. Id. 226 In sum, Wang’s hesitancy, lack of responsiveness, and 1 inconsistency constitute substantial evidence for the adverse 2 credibility determination. See 8 U.S.C. 3 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. The 4 adverse credibility determination is dispositive of asylum, 5 withholding of removal, and CAT relief because all three claims 6 are based on the same factual predicate. See Paul v. Gonzales , 7 444 F.3d 148, 156-57 (2d Cir. 2006). 8 For the foregoing reasons, the petition for review is 9

DENIED. 10

FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12