Filed: Dec. 15, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2951 Zhang v. Lynch BIA Nelson, IJ A087 936 608 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 NOTA
Summary: 14-2951 Zhang v. Lynch BIA Nelson, IJ A087 936 608 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 NOTAT..
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14-2951
Zhang v. Lynch
BIA
Nelson, IJ
A087 936 608
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 15th day of December, two thousand fifteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 QI ZHANG,
14 Petitioner,
15
16 v. 14-2951
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Galab B. Dhungana, New York, New
24 York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal
27 Deputy Assistant Attorney General;
28 Blair T. O’Connor, Assistant
29 Director; Juria L. Jones, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
1 Department of Justice, Washington,
2 D.C.
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 Qi Zhang, a native and citizen of the
8 People’s Republic of China, seeks review of a July 22, 2014,
9 decision of the BIA affirming an April 18, 2013, decision of
10 an Immigration Judge (“IJ”) denying Zhang’s application for
11 asylum, withholding of removal, and relief under the
12 Convention Against Torture (“CAT”). In re Qi Zhang, No.
13 A087 936 608 (B.I.A. July 22, 2014), aff’g No. A087 936 608
14 (Immig. Ct. N.Y. City Apr. 18, 2013). We assume the
15 parties’ familiarity with the underlying facts and
16 procedural history in this case.
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision, including the portions not explicitly
19 discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
20 391, 394 (2d Cir. 2005). The applicable standards of review
21 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
22 Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
1 For asylum applications, like Zhang’s, governed by the
2 REAL ID Act, the agency may, “[c]onsidering the totality of
3 the circumstances,” base a credibility finding on
4 inconsistencies between the applicant’s statements and other
5 evidence, “without regard to whether” they go “to the heart
6 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
7 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).
8 “We defer . . . to an IJ’s credibility determination unless,
9 from the totality of the circumstances, it is plain that no
10 reasonable fact-finder could make such an adverse
11 credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
12 Substantial evidence supports the adverse credibility
13 determination. The IJ reasonably relied on inconsistencies
14 among Zhang’s testimony, asylum application, and credible
15 fear interview. For instance, Zhang testified that, when
16 she was detained, the first day police officers grabbed her
17 hair and slapped her; two days later, officers returned and
18 slapped her, pushed her, and kicked her. Her asylum
19 application, however, did not mention being pushed or
20 kicked, and stated that her treatment was the same on both
21 days. Her explanation for her failure to include being
22 pushed or kicked in her application was that she was young
3
1 and afraid when she wrote the statement; her explanation for
2 describing the sessions as identical was that they started
3 out the same, but later became different. The agency was
4 not required to accept either explanation. See Majidi v.
5 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
6 Further, Zhang testified that she was detained for
7 seven days, but at her credible fear interview stated that
8 she was detained for only one day. She argues that the
9 agency erred in relying on the credible fear interview
10 transcript for this discrepancy. However, the transcript
11 bore sufficient “hallmarks of reliability” for the agency to
12 rely on it: the interview was conducted through a Mandarin
13 interpreter; there was no indication that Zhang had trouble
14 understanding the questions; the transcript was in question
15 and answer format; Zhang declined the opportunity to delay
16 her interview until she could hire an attorney; and she
17 discussed the reasons for her asylum request. See Ming
18 Zhang v. Holder,
585 F.3d 715, 723-25 (2d Cir. 2009).
19 Given the inconsistencies among her testimony, asylum
20 application, and credible fear interview, all of which
21 relate to the sole incident of alleged persecution,
22 substantial evidence supports the agency’s adverse
4
1 credibility determination. Xiu Xia Lin, 534 F.3d at 167;
2 Xian Tuan Ye v. Dep’t of Homeland Sec.,
446 F.3d 289, 295
3 (2d Cir. 2006). That determination is dispositive of
4 asylum, withholding of removal, and CAT relief, because all
5 three forms of relief relied on the same factual predicate.
6 See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
7 Zhang’s argument that the agency failed to consider CAT
8 relief does not warrant remand. As noted above, CAT relief
9 is foreclosed by the adverse credibility determination.
Id.
10 Moreover, Zhang did not contest the denial of CAT relief
11 before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480
12 F.3d 104, 107 n.1 (2d Cir. 2007).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
5
