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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the29th 

29th 4 day of November, two thousand seventeen. 

5 

6 PRESENT: 

7 DENNIS JACOBS,

8 GERARD E. LYNCH, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 ZONG YI WANG, 

14 Petitioner, 

15 

16 v. 16-2644 

17 NAC 

18 JEFFERSON B. SESSIONS, III, 

19 UNITED STATES ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Marta Bachynska, New York, NY. 

24 

25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

26 Attorney General; Anthony C. Payne, 

27 Assistant Director; Kathleen Kelly 

28 Volkert, Trial Attorney, Office of 

29 Immigration Litigation, United 

30 States Department of Justice, 

31 Washington, DC. 
2

1 UPON DUE CONSIDERATION of this petition for review of a 

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

4 DENIED. 

5 Petitioner Zong Yi Wang, a native and citizen of the 

6 People’s Republic of China, seeks review of a July 6, 2016, 

7 decision of the BIA affirming a June 17, 2015, decision of an 

8 Immigration Judge (“IJ”) denying Wang’s application for asylum, 

9 withholding of removal, and relief under the Convention Against 

10 Torture (“CAT”). In re Zong Yi Wang, No. A 205 270 818 (B.I.A. 

11 July 6, 2016), aff’g No. A 205 270 818 (Immig. Ct. N.Y. City June 

12 17, 2015). We assume the parties’ familiarity with the 

13 underlying facts and procedural history in this case. 

14 Under the circumstances of this case, we have reviewed both 

15 the IJ’s and BIA’s decisions “for the sake of completeness.” 

16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 

17 2006). The applicable standards of review are well 

18 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 

19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 

20 “Considering the totality of the circumstances, and all 

21 relevant factors, [an IJ] may base a credibility determination 

22 on the demeanor, candor, or responsiveness of the applicant 
3

1 . . ., the consistency between the applicant’s . . . written 

2 and oral statements . . . , the internal consistency of each 

3 such statement, [and] the consistency of such statements with 

4 other evidence of record . . . without regard to whether an 

5 inconsistency, inaccuracy, or falsehood goes to the heart of 

6 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see 

7 also Xiu Xia Lin, 534 F.3d at 163-64, 167. “We defer . . . to 

8 an IJ’s credibility determination unless . . . it is plain that 

9 no reasonable fact-finder could make such an adverse 

10 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 

11 Substantial evidence supports the agency’s determination that 

12 Wang was not credible. 

13 “We give particular deference to credibility 

14 determinations that are based on the adjudicator’s observation 

15 of the applicant’s demeanor, in recognition of the fact that 

16 the IJ’s ability to observe the witness’s demeanor places her 

17 in the best position to evaluate whether apparent problems in 

18 the witness’s testimony suggest a lack of credibility or, 

19 rather, can be attributed to an innocent cause such as 

20 difficulty understanding the question.” Jin Chen v. U.S. Dep’t 

21 of Justice, 426 F.3d 104, 113 (2d Cir. 2005). We defer to the 

22 agency’s demeanor finding here because the IJ provided several 
4

1 specific examples of Wang’s hesitancy and nonresponsive 

2 answers, and these examples are supported by the record. Cf.

3 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 

4 2006) (“We can be still more confident in our review of 

5 observations about an applicant’s demeanor where, as here, they 

6 are supported by specific examples of inconsistent 

7 testimony.”). 

8 Wang took long pauses and had difficulty answering 

9 questions on direct and cross examination regarding his 

10 persecution, his church attendance in China, his police 

11 interrogation, and the sermons he heard at his churches in China 

12 and the United States. Wang also testified inconsistently, 

13 first stating that, at the time of his arrest, his only son was 

14 almost one year old, but then acknowledging that his son was 

15 born four days before the alleged arrest. The agency 

16 reasonably concluded that this inconsistency called into 

17 question whether Wang had actually lived through the events he 

18 described. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 

19 534 F.3d at 166-67. And contrary to Wang’s argument that he 

20 had no opportunity to explain this inconsistency, the record 

21 reflects that Government counsel confronted Wang about it, and 

22 his explanation was that he had trouble remembering. The IJ 
5

1 was not compelled to accept that explanation, particularly 

2 because Wang also testified that it was a traumatic experience 

3 to be separated from his newborn child while he was detained. 

4 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner 

5 must do more than offer a plausible explanation for his 

6 inconsistent statements to secure relief; he must demonstrate 

7 that a reasonable fact-finder would be compelled to credit his 

8 testimony.” (quotation marks omitted)). 

9 Wang now argues, for the first time, that his mistake is 

10 attributable to the Chinese practice of considering a newborn 

11 to be a year old. As the Government argues, this explanation 

12 was not exhausted because neither Wang nor his attorney provided 

13 this explanation to the IJ or on appeal to the BIA. Foster v. 

14 U.S. INS, 376 F.3d 75, 78 (2d Cir. 2004). And Wang has not 

15 provided an affidavit or objective evidence to support his 

16 attorney’s assertion. See INS v. Phinpathya, 464 U.S. 183, 188 

17 n.6 (1984) (an attorney’s statements in a brief are not 

18 evidence). Moreover, even crediting the theory, the 

19 explanation does not work because it does not resolve why Wang 

20 gave his son’s age as almost one year. See Majidi, 430 F.3d 

21 at 80. Nor does Wang’s explanation (that he was nervous and made 

22 innocent mistakes) compel a contrary conclusion. Id. 
6

1 In sum, Wang’s hesitancy, lack of responsiveness, and 

2 inconsistency constitute substantial evidence for the adverse 

3 credibility determination. See 8 U.S.C. 

4 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The 

5 adverse credibility determination is dispositive of asylum, 

6 withholding of removal, and CAT relief because all three claims 

7 are based on the same factual predicate. See Paul v. Gonzales, 

8 444 F.3d 148, 156-57 (2d Cir. 2006). 

9 For the foregoing reasons, the petition for review is 

10 DENIED. 

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk