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.

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 1st 4 day of February, two thousand twelve.

5

6 PRESENT:

7

8 JOSÉ A. CABRANES,

9 DEBRA ANN LIVINGSTON,

10 GERARD E. LYNCH,

11 Circuit Judges. 

12 _______________________________________

13

14 XINYU JIANG,

15 Petitioner, 

16

17 v. 10-4962-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Michael Brown, New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Thomas B. Fatouros, Senior

28 Litigation Counsel; Lynda A. Do,

29 Attorney, Office of Immigration
2

1 Litigation, United States Department

2 of Justice, Washington, D.C.

3

4 UPON DUE CONSIDERATION of this petition for review of a

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

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

7 is DENIED.

8 Xinyu Jiang, a native and citizen of the People’s

9 Republic of China, seeks review of a November 19, 2010,

10 order of the BIA affirming the December 30, 2008, decision

11 of Immigration Judge (“IJ”) Douglas Schoppert, which denied

12 his applications for asylum, withholding of removal, and

13 relief under the Convention Against Torture (“CAT”). In re

14 Xinyu Jiang, No. A098 929 344 (B.I.A. Nov. 19, 2010), aff’g

15 No. A098 929 344 (Immig. Ct. N.Y. City Dec. 30, 2008). We

16 assume the parties’ familiarity with the underlying facts

17 and procedural history in this case.

18 Under the circumstances of this case, we have reviewed

19 the decision of the IJ as supplemented by the BIA. See Yan

20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

21 applicable standards of review are well-established. See

22 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

23 562 F.3d 510, 513 (2d Cir. 2009). Because Jiang does not

24 challenge the agency’s denial of either asylum or CAT
3

1 relief, the only issue before us is whether the agency erred

2 in denying Jiang’s application for withholding of removal

3 based on its adverse credibility determination. See Yueqing

4 Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). 

5 For applications such as Jiang’s, governed by the

6 amendments made to the Immigration and Nationality Act by

7 the REAL ID Act of 2005, the agency may, considering the

8 totality of the circumstances, base a credibility finding on

9 the applicant’s “demeanor, candor, or responsiveness,” the

10 plausibility of his account, and inconsistencies in his

11 statements, without regard to whether they go “to the heart

12 of the applicant’s claim.” See 8 U.S.C.

13 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

14 167 (2d Cir. 2008). We will “defer . . . to an IJ’s

15 credibility determination unless, from the totality of the

16 circumstances, it is plain that no reasonable fact-finder

17 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167. 

18 The IJ reasonably based his adverse credibility

19 determination on Jiang’s evasive demeanor, the

20 inconsistencies and implausibilities in his testimony, and

21 the lack of convincing corroborative evidence. As the IJ

22 noted, Jiang testified that he first attended an underground

23 Christian church activity in December 1995, but later
4

1 indicated that his first church activity was in December

2 1997. Jiang further testified that he lived with his

3 current roommate for eight years in the United States, yet

4 later stated that he did not know his roommate’s name or

5 whereabouts and that the roommate had moved out of the

6 apartment. Moreover, despite his assertion that he fled

7 China because he feared persecution, Jiang waited eight

8 years to file an asylum application. Contrary to Jiang’s

9 position, the IJ properly relied on the inconsistencies, and

10 the implausibility of the eight year delay in filing, to

11 find him not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii);

12 Xiu Xia Lin, 534 F.3d at 167 (holding that the agency could

13 rely on “any inconsistency,” regardless of whether it was

14 minor or collateral, as considered with the totality of the

15 circumstances, in making an adverse credibility

16 determination). The IJ’s adverse credibility finding is

17 further supported by his observation that Jiang was evasive

18 and seemed to give memorized answers. See 8 U.S.C.

19 § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of Justice, 426

20 F.3d 104, 113 (2d Cir. 2005).

21 The IJ also reasonably relied on Jiang’s failure to

22 submit corroborating evidence and sufficiently identified

23 the missing evidence as affidavits from other church members
5

1 or his roommate to confirm that he practiced Christianity in

2 the United States. See Chuilu Liu v. Holder, 575 F.3d 193,

3 198 n.5 (2d Cir. 2009) (the agency may rely on an

4 applicant’s failure to provide convincing corroborating

5 evidence in making an adverse credibility determination). 

6 Additionally, the agency also reasonably declined to credit

7 the affidavits allegedly written by Jiang’s father and

8 friend due to the striking similarities between the

9 affidavits’ structure, word usage, and level of detail. See

10 Surinder Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006); see

11 also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

12 342 (2d Cir. 2006) (the weight to be accorded to documentary

13 evidence lies largely within the agency’s discretion). 

14 Similarly, the IJ reasonably gave little weight to the

15 affidavit from Jiang’s church in the United States because

16 it did not confirm Jiang’s attendance prior to 2006. See

17 Xiao Ji Chen, 471 F.3d at 342. Contrary to Jiang’s

18 argument, the IJ sufficiently addressed the evidence, as he

19 explicitly mentioned it in his ruling. Wei Guang Wang v.

20 BIA, 437 F.3d 270, 273-74, 275 (2d Cir. 2006) (the agency is

21 not required to “expressly parse or refute on the record

22 each individual argument or piece of evidence offered by the

23 petitioner” as long as it “has given reasoned consideration
6

1 to the petition, and made adequate findings” (internal

2 quotation marks omitted)); see also Xiao Ji Chen, 471 F.3d

3 at 337 n.17(“[W]e presume that an IJ has taken into account

4 all of the evidence before him, unless the record

5 compellingly suggests otherwise.”). 

6 Given the inconsistent testimony, demeanor finding, and

7 lack of corroboration, the totality of the circumstances

8 supports the agency’s adverse credibility. See 8 U.S.C.

9 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 

10 For the foregoing reasons, the petition for review is

11 DENIED. As we have completed our review, any stay of

12 removal that the Court previously granted in this petition

13 is VACATED, and any pending motion for a stay of removal in

14 this petition is DISMISSED as moot. Any pending request for

15 oral argument in this petition is DENIED in accordance with

16 Federal Rule of Appellate Procedure 34(a)(2) and Second

17 Circuit Local Rule 34.1(b).

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk

20

21