Filed: Nov. 20, 2019
Latest Update: Mar. 03, 2020
Summary: 17-2455 Zhao v. Barr BIA Lamb, IJ A206 052 320 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: 17-2455 Zhao v. Barr BIA Lamb, IJ A206 052 320 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 ..
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17-2455
Zhao v. Barr
BIA
Lamb, IJ
A206 052 320
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.
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,
4 on the 20th day of November, two thousand nineteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 QINGHONG ZHAO,
14 Petitioner,
15
16 v. 17-2455
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Wei Gu, Albertson, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Carl H.
27 McIntyre, Assistant Director;
28 Justin R. Markel, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
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 Petitioner Qinghong Zhao, a native and citizen of the
6 People’s Republic of China, seeks review of a July 13, 2017,
7 decision of the BIA affirming a November 7, 2016, decision of
8 an Immigration Judge (“IJ”) denying Zhao’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Qinghong Zhao, No.
11 A 206 052 320 (B.I.A. July 13, 2017), aff’g No. A 206 052 320
12 (Immig. Ct. N.Y. City Nov. 7, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed the IJ’s decision as supplemented by
16 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
17 Cir. 2005). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
19 Sessions,
891 F.3d 67, 76–77 (2d Cir. 2018). In making a
20 credibility determination, the agency must “[c]onsider[] the
21 totality of the circumstances” and may base a finding on the
22 applicant’s “demeanor, candor, or responsiveness . . . , the
2
1 inherent plausibility of the applicant’s . . . account,”
2 inconsistencies in the applicant’s statements or between her
3 statements and other evidence, “without regard to whether an
4 inconsistency, inaccuracy, or falsehood goes to the heart of
5 the applicant’s claim, or any other relevant factor.”
6 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia Lin
10 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
11
Gao, 891 F.3d at 76. As discussed below, substantial
12 evidence supports the adverse credibility determination.
13 Inconsistencies
14 The IJ reasonably relied on inconsistencies in Zhao’s
15 testimony and between her testimony, application, and
16 documentary evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
17 Xia
Lin, 534 F.3d at 163–64, 166–67. Zhao’s asylum
18 application represented that family planning officials
19 visited her once and she immediately confessed that she was
20 pregnant and begged for mercy. But Zhao testified that
21 officials came to her house several times before her abortion,
22 suggested that a private clinic may have alerted officials
3
1 about her pregnancy, and omitted mention of her confession
2 and plea for mercy. Zhao had no explanation for these
3 discrepancies, so the agency was permitted to rely on them.
4 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005); see
5 also Xiu Xia
Lin, 534 F.3d at 167.
6 Zhao argues the IJ failed to apportion enough weight to
7 her documentary evidence. However, her evidence mainly
8 consisted of letters from relatives in China, which the agency
9 is not required to credit. See Y.C. v. Holder,
741 F.3d 324,
10 334 (2d Cir. 2013) (deferring to agency’s decision to afford
11 little weight to relative’s letter from China because it was
12 unsworn and from an interested witness); Matter of H-L-H- &
13 Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding
14 letters from alien’s friends and family insufficient support
15 because they were from interested witnesses not subject to
16 cross-examination), overruled on other grounds by Hui Lin
17 Huang v. Holder,
677 F.3d 130, 133-38 (2d Cir. 2012).
18 Nor did the agency err in discounting the abortion
19 certificate Zhao submitted because it undermined rather than
20 rehabilitated her credibility. The certificate, issued by a
21 hospital in China, stated that Zhao underwent an “abortion
22 operation” on October 25, 2012. But Zhao testified that she
4
1 did not receive any medical documents related to the abortion,
2 she did not recognize the certificate or know its contents
3 when confronted with it, and she could not explain why she
4 presented a copy and not the original. The IJ was not
5 required to accept Zhao’s self-serving statement that she was
6 truthful as it did not resolve her lack of familiarity with
7 her own evidence. Majidi, 430 F.3d at 80. Zhao attempts to
8 explain that she suffered a “memory lapse” not uncommon among
9 trauma victims and posits that she might have “thr[own] [the
10 abortion certificate] in a pile of papers and never looked at
11 it.” Even if such an explanation were plausible, we decline
12 to attempt to reconcile Zhao’s inconsistent statements after
13 the fact. See Zhou Yun Zhang v. U.S. INS,
386 F.3d 66, 77
14 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin
15 v. U.S. Dep’t of Justice,
494 F.3d 297, 305 (2d Cir. 2007).
16 The agency did not err in finding that the record
17 undermined Zhao’s claim that her abortion was forced rather
18 than voluntary, as she did not hide or attempt to evade
19 authorities despite testifying to several visits from family
20 planning officials prior to the abortion. 8 U.S.C.
21 § 1158(b)(1)(B)(iii) (agency may rely on “any other relevant
22 factor”). Moreover, as the BIA noted, the abortion
5
1 certificate from China undermined, rather than bolstered, her
2 claim because China issues “abortion certificates” for
3 voluntary abortions—not forced abortions—so that individuals
4 who have undergone voluntary abortions may obtain government
5 benefits. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 263
6 (2d Cir. 2007); Tu Lin v. Gonzales,
446 F.3d 395, 400 (2d
7 Cir. 2006).
8 Finally, Zhao waives any challenge to the IJ’s demeanor
9 finding, to which we defer, particularly where, as here, the
10 record supports the finding. See Yueqing Zhang v. Gonzales,
11
426 F.3d 540, 545 n.7 (2d Cir. 2005) (providing that issues
12 not raised in an opening brief are waived); Jin Chen v. U.S.
13 Dep’t of Justice,
426 F.3d 104, 113 (2d Cir. 2005) (giving
14 “particular deference to credibility determinations that are
15 based on the adjudicator’s observation of the applicant’s
16 demeanor, in recognition of the fact that the IJ’s ability to
17 observe . . . demeanor places her in the best position to
18 evaluate [] apparent problems in the witness’s testimony”).
19 Given the inconsistency, omission, corroboration, and
20 demeanor findings, the totality of the circumstances supports
21 the adverse credibility determination. See Xiu Xia Lin,
534
22 F.3d at 167. The adverse credibility determination is
6
1 dispositive of asylum, withholding of removal, and CAT relief
2 because all three forms of relief are based on the same
3 discredited factual predicate. See Paul v. Gonzales, 444
4 F.3d 148, 156-57 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe,
15 Clerk of Court
16
7
