10-4962-ag Jiang v. Holder BIA Schoppert, IJ A098 929 344 

### 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 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 1 st** **day of February, two thousand twelve.** 4 5 **PRESENT:** 6 7 **JOSÉ A. CABRANES,** 8 **DEBRA ANN LIVINGSTON,** 9 **GERARD E. LYNCH,** 10 Circuit Judges **.** 11

**_______________________________________** 12 13 **XINYU JIANG,** 14 Petitioner**,** 15 16 **v. 10-4962-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_______________________________________** 22 23 **FOR PETITIONER: Michael Brown, New York, New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Thomas B. Fatouros, Senior** 27 **Litigation Counsel; Lynda A. Do,** 28 **Attorney, Office of Immigration** 292 **Litigation, United States Department** 1 **of Justice, Washington, D.C.** 2 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review 6 is DENIED. 7 Xinyu Jiang, a native and citizen of the People’s 8 Republic of China, seeks review of a November 19, 2010, 9 order of the BIA affirming the December 30, 2008, decision 10 of Immigration Judge (“IJ”) Douglas Schoppert, which denied 11 his applications for asylum, withholding of removal, and 12 relief under the Convention Against Torture (“CAT”). In re 13 Xinyu Jiang, No. A098 929 344 (B.I.A. Nov. 19, 2010),aff’g 14 No. A098 929 344 (Immig. Ct. N.Y. City Dec. 30, 2008). We 15 assume the parties’ familiarity with the underlying facts 16 and procedural history in this case. 17 Under the circumstances of this case, we have reviewed 18 the decision of the IJ as supplemented by the BIA. See Yan 19 Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 20 applicable standards of review are well-established. See 21 8 U.S.C. § 1252(b)(4)(B);see also Yanqin Weng v. Holder , 22 562 F.3d 510, 513 (2d Cir. 2009). Because Jiang does not 23 challenge the agency’s denial of either asylum or CAT 243 relief, the only issue before us is whether the agency erred 1 in denying Jiang’s application for withholding of removal 2 based on its adverse credibility determination. See Yueqing 3 Zhang v. Gonzales , 426 F.3d 540, 545 n.7 (2d Cir. 2005). 4 For applications such as Jiang’s, governed by the 5 amendments made to the Immigration and Nationality Act by 6 the REAL ID Act of 2005, the agency may, considering the 7 totality of the circumstances, base a credibility finding on 8 the applicant’s “demeanor, candor, or responsiveness,” the 9 plausibility of his account, and inconsistencies in his 10 statements, without regard to whether they go “to the heart 11 of the applicant’s claim.” See8 U.S.C. 12 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,534 F.3d 162, 13 167 (2d Cir. 2008). We will “defer . . . to an IJ’s 14 credibility determination unless, from the totality of the 15 circumstances, it is plain that no reasonable fact-finder 16 could make” such a ruling. Xiu Xia Lin , 534 F.3d at 167. 17 The IJ reasonably based his adverse credibility 18 determination on Jiang’s evasive demeanor, the 19 inconsistencies and implausibilities in his testimony, and 20 the lack of convincing corroborative evidence. As the IJ 21 noted, Jiang testified that he first attended an underground 22 Christian church activity in December 1995, but later 234 indicated that his first church activity was in December 1 1997. Jiang further testified thathe lived with his 2 current roommate for eight years in the United States, yet 3 later stated that he did not know his roommate’s name or 4 whereaboutsand that the roommate had moved out of the 5 apartment. Moreover, despite his assertion that he fled 6 China because he feared persecution, Jiang waited eight 7 years to file an asylum application. Contrary to Jiang’s 8 position, the IJ properly relied on the inconsistencies, and 9 the implausibility of the eight year delay in filing, to 10 find him not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); 11 Xiu Xia Lin , 534 F.3d at 167 ( holding that the agency could 12 rely on “any inconsistency,” regardless of whether it was 13 minor or collateral, as considered with the totality of the 14 circumstances, in making an adverse credibility 15 determination)

. The IJ’s adverse credibility finding is 16 further supported by his observation that Jiang was evasive 17 and seemed to give memorized answers. See 8 U.S.C. 18 § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of Justice , 426 19 F.3d 104, 113 (2d Cir. 2005). 20 The IJ also reasonably relied on Jiang’s failure to 21 submit corroborating evidence and sufficiently identified 22 the missing evidence as affidavits from other church members 235 or his roommate to confirm that he practiced Christianity in 1 the United States. See Chuilu Liu v. Holder , 575 F.3d 193, 2 198 n.5 (2d Cir. 2009) (the agency may rely on an 3 applicant’s failure to provide convincing corroborating 4 evidence in making an adverse credibility determination). 5 Additionally, the agency also reasonably declined to credit 6 the affidavits allegedly written by Jiang’s father and 7 friend due to the striking similarities between the 8 affidavits’ structure, word usage, and level of detail. See 9 Surinder Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006); see 10 also Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 11 342 (2d Cir. 2006) (the weight to be accorded to documentary 12 evidence lies largely within the agency’s discretion)

. 13 Similarly, the IJ reasonably gave little weight to the 14 affidavit from Jiang’s church in the United States because 15 it did not confirm Jiang’s attendance prior to 2006. See 16 Xiao Ji Chen , 471 F.3d at 342. Contrary to Jiang’s 17 argument, the IJ sufficiently addressed the evidence, as he 18 explicitly mentioned it in his ruling. Wei Guang Wang v. 19

BIA, 437 F.3d 270, 273-74, 275 (2d Cir. 2006) (the agency is 20 not required to “expressly parse or refute on the record 21 each individual argument or piece of evidence offered by the 22 petitioner” as long as it “has given reasoned consideration 236 to the petition, and made adequate findings” (internal 1 quotation marks omitted)); see also Xiao Ji Chen , 471 F.3d 2 at 337 n.17(“[W]e presume that an IJ has taken into account 3 all of the evidence before him, unless the record 4 compellingly suggests otherwise.”). 5 Given the inconsistent testimony, demeanor finding, and 6 lack of corroboration, the totality of the circumstances 7 supports the agency’s adverse credibility. See8 U.S.C. 8 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of 11 removal that the Court previously granted in this petition 12 is VACATED, and any pending motion for a stay of removal in 13 this petition is DISMISSED as moot. Any pending request for 14 oral argument in this petition is DENIED in accordance with 15 Federal Rule of Appellate Procedure 34(a)(2) and Second 16 Circuit Local Rule 34.1(b). 17
FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 21