WANG v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-05-14No. 19-1954

Summary · law.co

Holding. The petition for review is denied because the agency's adverse credibility determination was supported by substantial evidence, including cumulative inconsistencies in Wang's testimony and his failure to provide reliable corroboration.

Lianjun Wang, a Chinese citizen, petitioned for review of decisions by an Immigration Judge and the Board of Immigration Appeals denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. The court reviewed whether the agency's adverse credibility determination was supported by substantial evidence, applying the well-established standard that deference is owed to credibility findings unless no reasonable fact-finder could have reached the same conclusion.

The court found multiple inconsistencies in Wang's testimony that, taken together, substantially supported the agency's adverse credibility determination. Wang gave conflicting accounts regarding when the Chinese government ordered him to relocate, whether he moved in 2009 or 2010, and whether his sister signed a compensation agreement. Additionally, Wang undermined his credibility by listing the address of his purportedly demolished home on his 2011 visa application. The court determined that Wang's explanations for these discrepancies were not compelling.

The court also upheld the agency's reliance on Wang's failure to provide reliable corroboration for his testimony. Documents he submitted had significant evidentiary problems: a relocation notice conflicted with his testimony about when he received notice, a neighbor's letter was unsworn and the neighbor was unavailable for cross-examination, and alleged government documents were unauthenticated. Because the adverse credibility determination was dispositive—as all three forms of relief Wang sought rested on the same factual foundation—the court denied his petition.

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Key issues

Whether inconsistencies in applicant's testimony cumulatively support an adverse credibility determination
Standard of review and deference owed to immigration judge credibility findings
Adequacy of corroborating evidence and weight afforded to unsworn and unauthenticated documents
Whether credibility determination disposing of asylum, withholding of removal, and CAT claims is dispositive

Procedural posture

Wang petitioned for review of a Board of Immigration Appeals decision affirming an Immigration Judge's denial of his applications for asylum, withholding of removal, and Convention Against Torture protection.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

SUMMARY ORDER

Petitioner Lianjun Wang, a native and citizen of the Peoples Republic of China, seeks review of a June 17, 2019 BIA decision affirming a January 30, 2018 decision of an Immigration Judge (“IJ”), which denied Wangs application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Lianjun Wang, No. X XXX XX0 756 (B.I.A. Jun. 17, 2019), affg No. X XXX XX0 756 (Immig. Ct. N.Y. City Jan. 30, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed the IJs decision as modified by the BIA — i.e., minus the basis for denying relief that the BIA declined to consider. See Xue Hong Yang v. U.S. Dept of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

“Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant ․, the consistency between the applicants or witnesss written and oral statements ․, the internal consistency of each such statement, the consistency of such statements with other evidence of record ․, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicants claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer ․ to an IJs credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.

We deny Wangs petition because, taken cumulatively, Wangs inconsistencies provide substantial evidence in support of the agencys adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 167 (holding that “cumulative effect of ․ inconsistencies reasonably could have affected the IJs evaluation of ․ credibility”).

Wang was inconsistent about when the Chinese government informed him that he needed to move, whether he moved in 2009 or 2010, and whether his sister signed a compensation agreement she allegedly helped broker for him and his father after their home was demolished. Wang also undermined his credibility by using the address of the purportedly demolished home when he applied for a visa to come to the United States in 2011. He did not have compelling explanations for these discrepancies. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony.” (internal quotation marks omitted, emphasis in original)).

The agency also reasonably relied on Wangs failure to corroborate his testimony with reliable evidence.

See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”); Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicants failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question.”). The agency did not err in declining to afford significant weight to Wangs documents because the August 2008 relocation notice conflicted with Wangs testimony that he received notice in October 2008; the letter from Wangs neighbor was unsworn; and the neighbor, unidentified photographer, and author of the medical record were not available for cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that the weight of the evidence is a matter of agency discretion and deferring to agencys decision to afford little weight to spouses unsworn letter); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (letters from aliens friends and family were insufficient to provide substantial support for aliens claims because they were from interested witnesses not subject to cross-examination), overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012). The alleged government documents were also unauthenticated. See Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. at 214 n.5 (“[T]he failure to attempt to prove the authenticity of a document ․ is significant.”); see also Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008) (explaining that Court affords IJ “considerable flexibility in determining the authenticity of ․ documents from the totality of the evidence and in using documents found to be authentic in making an overall assessment of the credibility of a petitioners testimony and, ultimately, of h[is] persecution claim”). And as the IJ noted, Wang failed to submit more probative documents, such as a letter from his sister, who Wang claimed witnessed relevant events and helped him broker the compensation agreement.

Given the inconsistencies in Wangs testimony and the lack of reliable corroboration, the agencys adverse credibility determination is supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64. The adverse credibility determination is dispositive because asylum, withholding of removal, and CAT relief are all based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.

FOOTNOTES

. The agency also faulted Wang for omitting from his written declarations that he lived with his sister and other people before and after his home was demolished. Even assuming error in this finding, see Hong Fei Gao, 891 F.3d at 78–79 (requiring IJ to consider whether omitted “facts are ones that a credible petitioner would reasonably have been expected to disclose”), the other findings provide substantial evidence for the adverse credibility determination, see Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (noting that remand to the agency would be futile “whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors” (internal quotation marks omitted, emphasis in original)).