11-4846

Jiang v. Holder

BIA

Balasquide, IJ

A087 464 767

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 Thurgood Marshall United

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

on the 27th 4 day of March, two thousand thirteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 ROBERT D. SACK,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 LIANG JIE JIANG,

14 Petitioner, 

15

16 v. 11-4846

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Lee Ratner, Law Offices of Michael

24 Brown, New York, New York.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Thomas B.

28 Fatouros, Senior Litigation Counsel;

29 Arthur L. Rabin, Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
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

4 is DENIED.

5 Liang Jie Jiang, a native and citizen of the People’s

6 Republic of China, seeks review of a November 9, 2011,

7 decision of the BIA affirming the April 14, 2010, decision

8 of Immigration Judge (“IJ”) Javier Balasquide, which denied

9 his application for asylum, withholding of removal, and

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

11 Liang Jie Jiang, No. A087 464 767 (B.I.A. Nov. 9, 2011),

12 aff’g No. A087 464 767 (Immig. Ct. N.Y. City Apr. 14, 2010). 

13 We assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 Under the circumstances of this case, we have reviewed

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

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

18 applicable standards of review are well-established. See

19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

20 562 F.3d 510, 513 (2d Cir. 2009). Because Jiang does not

21 challenge the denial of CAT relief, we address only asylum

22 and withholding of removal.

23

2
1 For applications such as Jiang’s, governed by the

2 amendments made to the Immigration and Nationality Act by

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

4 totality of the circumstances, base a credibility finding on

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

6 plausibility of his account, and inconsistencies in his

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

8 of the . . . claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

9 1231(b)(3)(C); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d

10 Cir. 2008). We will “defer to an IJ’s credibility

11 determination unless, from the totality of the

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

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

14 The IJ’s adverse credibility determination is supported by

15 substantial evidence. 

16 The IJ reasonably based his credibility finding on

17 Jiang’s inconsistent testimony and inconsistencies among his

18 testimony, his brother’s testimony, and the documentary

19 evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

20 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167. Indeed, the

21 record reflects that: (1) Jiang’s testimony that he had

22 practiced Falun Gong in his brother’s home was contrary to

3
1 both his later testimony that he had never visited his

2 brother’s house and his brother’s testimony that he (Jiang)

3 had practiced only in his own apartment and the park;

4 (2) his testimony that he had moved to Guang Hui number 251

5 and had gone into hiding at his sister-in-law’s house was

6 contrary to his earlier testimony that he had not moved from

7 number 102 and his household registration booklet that

8 reflected only the 102 address; (3) his testimony that he

9 and his wife moved in 2005 to the 102 address contradicted

10 the 2007 date listed in his household registration booklet;

11 (4) his testimony that he had obtained the registration

12 booklet while he was in China, conflicted with the issuance

13 date listed on the booklet and his later testimony that his

14 wife obtained the booklet; and (5) his brother’s testimony

15 that the photographs of him practicing Falun Gong were taken

16 in summer conflicted with his own testimony that they were

17 taken in January and the photographs themselves which

18 reflected that they were taken during fall or winter. The

19 agency did not err in relying on these inconsistencies in

20 making an adverse credibility determination. See 8 U.S.C.

21 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

22 at 167 (providing that an IJ may support an adverse

4
1 credibility determination with “any inconsistency or

2 omission”). 

3 Moreover, the IJ reasonably rejected Jiang’s

4 explanations for his inconsistent testimony, specifically

5 that he was nervous or “blank[ed] out,” because they did not

6 resolve how he gave detailed yet contradictory testimony. 

7 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 

8 In addition, the adverse credibility determination is

9 further supported by the IJ’s demeanor finding based on

10 Jiang’s evasive testimony. See Li Hua Lin v. U.S. Dep’t of

11 Justice, 453 F.3d 99, 109 (2d Cir. 2006).

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

13 submit sufficient corroborating evidence that Chinese family

14 planning officials had forcibly aborted his wife’s pregnancy

15 and fined his wife when Jiang submitted only an abortion

16 certificate from the government and no medical records

17 showing that his wife had been pregnant and had undergone an

18 abortion. See Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5

19 (2d Cir. 2009) (the agency may rely on an applicant’s

20 failure to provide convincing corroborating evidence in

21 making an adverse credibility determination). 

22 Given these inconsistencies, the negative demeanor

23 finding, and the lack of corroboration, the totality of the

5
1 circumstances supports the agency’s adverse credibility

2 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

3 Lin, 534 F.3d at 167. Because the only evidence of a threat

4 to Jiang’s life or freedom depended upon his credibility,

5 the adverse credibility determination in this case also

6 necessarily precludes success on his claim for withholding

7 of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d

8 Cir. 2006).

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

6