Dian Sheng Jiang v. Board of Immigration Appeals

UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals ("BIA") decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.

Petitioner Dian Sheng Jiang, a native and citizen of
the People's Republic of China, seeks review of an April 27,
2007 order of the BIA affirming the September 9, 2005
decision of Immigration Judge ("IJ") William Van Wyke
denying his application for asylum, withholding of removal,
and relief under the Convention Against Torture ("CAT"). In
re Dian Sheng Jiang, No. A 79 617 903 (B.I.A. Apr. 27,
2007), aff'g No. A 79 617 903 (Immig. Ct. N.Y. City, Sept.
9, 2005). We assume the parties' familiarity with the
underlying facts and procedural history in this case.

When the BIA adopts and supplements the IJ's decision,
this court reviews the decision of the IJ as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005). This Court reviews the agency's factual findings, including adverse credibility findings, under the
substantial evidence standard, treating them as "conclusive
unless any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see,
e.g., Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281,
289 (2d Cir. 2007). However, we will vacate and remand for
new findings if the agency's reasoning or its fact-finding
process was sufficiently flawed. Cao He Lin v. U.S. Dep't
of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen
v. INS, 359 F.3d 121, 129 (2d Cir. 2004).

We conclude that substantial evidence supports the IJ's
adverse credibility determination. This Court has
emphasized that because demeanor is "virtually always
evaluated subjectively and intuitively," an IJ is accorded
"great deference." See Tu Lin v. Gonzales, 446 F.3d 395,
400 (2d Cir. 2006). Additionally, evasiveness is "one of
the many outward signs a fact-finder may consider in
evaluating demeanor and in making an assessment of
credibility." Id. We have further noted that a fact-finder
who assesses testimony together with a witness's demeanor is
in the best position to discern whether a witness "who
hesitated in a response was nevertheless attempting
truthfully to recount what he recalled of key events or
struggling to remember the lines of a carefully crafted
‘script.'" Id. at 401, quoting Zhou Yun Zhang, 386 F.3d at
73.

Here, in finding Jiang not credible, the IJ reasonably
relied on his demeanor. The IJ accurately noted that when
Jiang testified concerning matters contained in his written
application, he spoke as though he were reading from a
script. For example, when asked whether, following his
wife's abortion, Jiang ever discussed with her what had
happened, instead of responding "yes" or "no," the record
reflects that he recounted the details mentioned in his
written application. Likewise, Jiang appears to have had
difficulty in stating when his wife had her alleged
abortion. Similarly, the IJ properly found that Jiang's
demeanor was "non-responsive" when he testified about things
not written in his application, such as when asked whether
he and his wife planned to hide the pregnancy from the
Chinese government. Thus, these findings supported the IJ's
adverse credibility determination. See Tu Lin, 446 F.3d at
400.

Moreover, Jiang's argument that his lack of knowledge
as to whether his brother had problems with the family
planning policy did not bear on his credibility is
unavailing. The IJ appropriately emphasized that this
portion of Jiang's testimony was important because he was
"very reticent about speaking," and this content involved
matters outside of his written application. Further, the IJ
reasonably rejected Jiang's explanation for the deficiencies
in his testimony – that he "didn't even graduate elementary
school" – when he admitted that he wrote the statement
attached to his asylum application. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005) (emphasizing that the
agency need not credit an applicant's explanations for
inconsistent testimony unless those explanations would
compel a reasonable fact-finder to do so). Thus, the IJ
appropriately found that Jiang's demeanor undermined his
credibility. See Tu Lin, 446 F.3d at 400.

Additionally, the IJ accurately identified an
inconsistency in Jiang's testimony as to who obtained his
wife's abortion certificate. On direct-examination, Jiang
testified that he obtained the abortion certificate in June
2002 after he received notice of his 10,000 yuan fine. In
contrast, Jiang testified on cross-examination that his
family sent him the abortion certificate, and that he "first
saw it when it was sent to [him] from China." Ordinarily,
inconsistencies that are ancillary to an applicant's claim
may not support an adverse credibility determination. See
Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003).
However, the IJ reasonably found this inconsistency to
further undermine Jiang's credibility, in light of the doubt
already cast on his testimony. See Siewe v. Gonzales, 480
F.3d 160, 170 (2d Cir. 2007) ("a single instance of false
testimony may (if attributable to the petitioner) infect the
balance of the alien's uncorroborated or unauthenticated
evidence").

Further, the IJ properly gave diminished weight to
Jiang's documentary evidence. See Xiao Ji Chen v. U.S.
Dep't of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006). In
doing so, the IJ appropriately noted that the consular
report indicated that Jiang's abortion certificate "was not
what [he] said it was," and reasonably found that the
statement from Jiang's wife and her gynecological
examination booklet were not "weighty enough" to
rehabilitate Jiang's tainted testimony. See id.

Finally, while the IJ made several implausibility-
related findings, Jiang failed to meaningfully challenge
them in his brief to the Court. Thus, any such arguments
are deemed waived. See Yueqing Zhang v. Gonzales, 426 F.3d
540, 541 n.1 (2d Cir. 2005). As such, substantial evidence
supports the IJ's denial of Jiang's asylum application.
Accordingly, we need not reach the Government's assertion
that Jiang is no longer eligible for the relief he seeks, in
light of Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d
296 (2d Cir. 2007) (En Banc).

Because the only evidence of a threat to Jiang's life
or freedom or a likelihood of torture depended upon his
credibility, the adverse credibility determination in this
case necessarily precludes success on his claims for
withholding of removal and relief under the CAT, which
rested on the same factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.
Dep't of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.

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