Jiang v. Barr BIA Leeds, IJ A205 046 327

18-1652
Jiang v. Barr
BIA
Leeds, IJ
A205 046 327
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 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 4
th
day of February, two thousand twenty. 4
5
PRESENT: 6
GUIDO CALABRESI, 7
JOSÉ A. CABRANES, 8
RICHARD J. SULLIVAN, 9
Circuit Judges. 10
_____________________________________ 11
12
MIN JIAN JIANG, 13
Petitioner, 14
15
v. 18-1652 16
NAC 17
WILLIAM P. BARR, 18
UNITED STATES ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: Gerald Karikari, Esq., New York, 23
NY. 24
25
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 26
General; Lisa M. Arnold, Senior 27
Litigation Counsel; Joseph B. 28
Edlow, Trial Attorney, Office of 29

2

Immigration Litigation, United 1
States Department of Justice, 2
Washington, DC. 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
Petitioner Min Jian Jiang, a native and citizen of China, 8
seeks review of a May 22, 2018 decision of the BIA affirming 9
a May 22, 2017 decision of an Immigration Judge (“IJ”) denying 10
Jiang’s application for asylum, withholding of removal, and 11
relief under the Convention Against Torture (“CAT”). In re 12
Min Jian Jiang, No. A 205 046 327 (B.I.A. May 22, 2018), aff’g 13
No. A 205 046 327 (Immig. Ct. N.Y. City May 22, 2017). We 14
assume the parties’ familiarity with the underlying facts and 15
procedural history. 16
We have reviewed both the IJ’s and the BIA’s decisions 17
“for the sake of completeness.” Wangchuck v. Dep’t of 18
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 19
applicable standards of review are well established. See 8 20
U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 21
67, 76 (2d Cir. 2018) (reviewing adverse credibility 22
determination for substantial evidence). 23

3

“Considering the totality of the circumstances, and all 1
relevant factors, a trier of fact may base a credibility 2
determination on the demeanor, candor, or responsiveness of 3
the applicant . . . , the consistency between the applicant’s 4
. . . written and oral statements . . . , the internal 5
consistency of each such statement, [and] the consistency of 6
such statements with other evidence of record . . . without 7
regard to whether an inconsistency, inaccuracy, or falsehood 8
goes to the heart of the applicant’s claim, or any other 9
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer 10
. . . to an IJ’s credibility determination unless, from the 11
totality of the circumstances, it is plain that no reasonable 12
fact-finder could make such an adverse credibility ruling.” 13
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); 14
accord Hong Fei Gao, 891 F.3d at 76. The agency’s adverse 15
credibility determination is supported by substantial 16
evidence. 17
Jiang does not substantively challenge the agency’s 18
demeanor finding and has therefore waived review of that 19
determination. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 20
541 n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner 21
abandons issues and claims not raised in his brief). 22

4

Regardless of waiver, the agency properly considered Jiang’s 1
demeanor to find him not credible because the finding is 2
grounded in the record, and we generally defer to an IJ’s 3
demeanor finding. See Jin Chen v. U.S. Dep’t of Justice, 426 4
F.3d 104, 113 (2d Cir. 2005) (“We give particular deference 5
to credibility determinations that are based on the 6
adjudicator’s observation of the applicant’s demeanor, in 7
recognition of the fact that the IJ’s ability to observe the 8
witness’s demeanor places h[im] in the best position to 9
evaluate whether apparent problems in the witness’s testimony 10
suggest a lack of credibility or, rather, can be attributed 11
to an innocent cause such as difficulty understanding the 12
question.”). 13
The IJ found Jiang had “long pauses” when testifying. 14
This finding is supported by the record: when asked why he 15
did not name in his written statement a coworker who was also 16
persecuted, Jiang did not immediately answer, and later, when 17
confronted with an inconsistency about when he began 18
practicing Falun Gong in a New York park, there was a long 19
pause before Jiang replied. [CAR 119, 163.] Because the record 20
supports the IJ’s demeanor findings, we defer to the agency’s 21
adverse credibility determination in that respect. See Jin 22

5

Chen, 426 F.3d at 113. 1
The agency also reasonably relied on inconsistencies 2
between Jiang and his friend about when Jiang began practicing 3
Falun Gong in a New York park and how the friends reconnected 4
in New York. Further, Jiang was internally inconsistent 5
about how many times per week he practiced Falun Gong. He 6
did not have compelling explanations for these 7
inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d 8
Cir. 2005) (“A petitioner must do more than offer a plausible 9
explanation for his inconsistent statements to secure relief; 10
he must demonstrate that a reasonable fact-finder would be 11
compelled to credit his testimony.” (internal quotation marks 12
omitted)). 13
Having questioned Jiang’s credibility, the agency 14
reasonably relied on his failure to rehabilitate his 15
testimony with reliable corroborating evidence. See Biao 16
Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 17
applicant’s failure to corroborate his or her testimony may 18
bear on credibility, because the absence of corroboration in 19
general makes an applicant unable to rehabilitate testimony 20
that has already been called into question.”). Jiang 21
submitted undated pictures taken by an unknown photographer 22

6

of Jiang allegedly practicing Falun Gong and protesting the 1
Chinese government in the United States, unsworn statements 2
from a friend in China and his mother, and a notarized 3
affidavit from his witness. The agency did not err in 4
declining to afford significant weight to these documents 5
because the photographer, the friend, and Jiang’s mother were 6
not available for cross-examination, and his mother was an 7
interested witness. See Y.C. v. Holder, 741 F.3d 324, 334 8
(2d Cir. 2013) (deferring to agency’s decision to afford 9
little weight to spouse’s letter because it was unsworn and 10
from an interested witness); see also In re H-L-H- & Z-Y-Z-, 11
25 I. & N. Dec. 209, 215 (BIA 2010) (finding that unsworn 12
letters from alien’s friends and family were insufficient to 13
provide substantial support for alien’s claims because they 14
were from interested witnesses not subject to cross-15
examination), overruled on other grounds by Hui Lin Huang v. 16
Holder, 677 F.3d 130, 133–38 (2d Cir. 2012). And Jiang 17
testified inconsistently with his witness, rendering the 18
witness’s affidavit unreliable. Jiang did not submit any 19
particularized, objective evidence to support his claim. See 20
Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d 21
Cir. 2005) (requiring “particularized evidence” beyond 22

7

general country conditions to support a claim). 1
Accordingly, given the demeanor finding, the record 2
inconsistencies, and the lack of reliable corroboration, the 3
adverse credibility determination is supported by substantial 4
evidence. See Xiu Xia Lin, 534 F.3d at 165–66. The adverse 5
credibility determination was dispositive of asylum, 6
withholding of removal, and CAT relief because all three forms 7
of relief were based on the same discredited factual 8
predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 9
Cir. 2006). 10
For the foregoing reasons, the petition for review is 11
DENIED. All pending motions and applications are DENIED and 12
stays VACATED. 13
FOR THE COURT: 14
Catherine O’Hagan Wolfe, 15
Clerk of Court 16