Filed: Oct. 04, 2016
Latest Update: Mar. 03, 2020
Summary: 15-351 Zhang v. Lynch BIA Vomacka, IJ A099 895 703 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: 15-351 Zhang v. Lynch BIA Vomacka, IJ A099 895 703 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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15-351
Zhang v. Lynch
BIA
Vomacka, IJ
A099 895 703
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 4th day of October, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 XUE JIE ZHANG,
14 Petitioner,
15
16 v. 15-351
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General;
27 Jennifer P. Williams, Senior
28 Litigation Counsel; Raya Jarawan,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33
34
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 is
4 DENIED.
5 Petitioner Xue Jie Zhang, a native and citizen of China,
6 seeks review of a January 9, 2015, decision of the BIA affirming
7 a December 6, 2012, decision of an Immigration Judge (“IJ”)
8 denying Zhang’s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Xue Jie Zhang, No. A099 895 703 (B.I.A. Jan. 9, 2015), aff’g
11 No. A099 895 703 (Immig. Ct. N.Y. City Dec. 6, 2012). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Zhang does not challenge the agency’s denial of his asylum
15 application as untimely, Norton v. Sam’s Club, 145 F.3d 114,
16 117 (2d Cir. 1998), and we generally lack jurisdiction to review
17 that finding, 8 U.S.C. §§ 1158(a)(2), 1252(a)(2)(D) (agency’s
18 finding that asylum application was filed more than one year
19 after arrival is not subject to review except as to
20 constitutional claims and questions of law). Because the BIA
21 did not reach the IJ’s conclusion that Zhang failed to meet his
22 burden to demonstrate a likelihood of future harm, our review
2
1 is further limited to the adverse credibility determination.
2 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
3 (2d Cir. 2005) (holding that where the BIA affirms in only some
4 respects, we review the IJ’s decision as modified by the BIA’s
5 decision). As discussed below, the agency’s adverse
6 credibility determination is dispositive of both withholding
7 of removal and CAT relief. Paul v. Gonzales,
444 F.3d 148,
8 156-57 (2d Cir. 2006). We review credibility determinations
9 under a substantial evidence standard. 8 U.S.C.
10 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165 (2d
11 Cir. 2008).
12 Under the REAL ID Act of 2005, the agency may, in light of
13 “the totality of the circumstances,” base an adverse
14 credibility determination on an asylum applicant’s “demeanor,
15 candor, or responsiveness,” the plausibility of his account,
16 and inconsistencies in his statements, “without regard to
17 whether” those inconsistencies go “to the heart of the
18 applicant’s claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii),
19 1231(b)(3)(C); Xiu Xia
Lin, 534 F.3d at 165. Under the
20 “substantial evidence” standard of review, we “defer . . . to
21 an IJ’s credibility determination unless, from the totality of
22 the circumstances, it is plain that no reasonable fact-finder
3
1 could make such an adverse credibility ruling.” Xiu Xia Lin,
2 534 F.3d at 167.
3 The IJ’s decision makes sufficiently clear that it was
4 deciding the credibility of Zhang’s testimony. The IJ stated
5 that Zhang’s “credibility overall is affected by the
6 explanation he has given for the lack of agreement between his
7 testimony of attending Church of Grace since February 2009 and
8 the letter issued by the church.” He further found that “there
9 were issues raised concerning the respondent’s credibility in
10 general from” Zhang’s two visa applications. He observed that
11 Zhang’s was a case in which the lack of corroboration “raises
12 issues about credibility”--although credibility and
13 corroboration are often treated as distinct, here they were
14 intertwined.
Diallo, 232 F.3d at 290 (in making a credibility
15 determination, “the presence of corroborating evidence may be
16 relevant”).
17 At bottom, the IJ doubted that Zhang is a practicing
18 Christian. That finding rests on substantial evidence.
19 Although Zhang testified that he began attending the Church of
20 Grace in February 2009, his only documentary evidence of
21 attendance was a letter stating that, according to the
22 registration book, Zhang started attending services on October
4
1 31, 2010. When asked about the period between February 2009
2 and October 2010, Zhang explained that he did not write his name
3 in the attendance book until October 2010 because he did not
4 know he needed to “put down” his name. The IJ was not compelled
5 to credit this explanation. Majidi v. Gonzales, 430 F.3d 77,
6 80 (2d Cir. 2005) (explaining that the agency is not required
7 to credit an explanation that is merely plausible or possible).
8 Moreover, the IJ reasonably deemed the timing to be suspicious:
9 Zhang had submitted his asylum application in June 2010, months
10 before he began documenting his attendance.
11 Other aspects of Zhang’s testimony cast doubt on his
12 practice of Christianity. Zhang testified that while living
13 in Roanoke, Virginia for two years, he commuted to the Church
14 of Grace in New York for services “once a week” or sometimes
15 “once every two or three weeks.” When asked why he did not
16 attend services in Roanoke, Zhang responded that his employer
17 told him there were no Chinese churches nearby. The IJ
18 reasonably rejected this explanation as implausible. Majidi,
19 430 F.3d at 80. “The point at which a finding that testimony
20 is implausible ceases to be sustainable as reasonable and,
21 instead, is justifiably labeled ‘speculation,’ in the absence
22 of an IJ’s adequate explanation, cannot be located with
5
1 precision,” but we uphold a finding unless we are “left with
2 the definite and firm conviction that a mistake has been
3 committed.” Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir.
4 2006) (internal citation and quotation marks omitted). Here,
5 the IJ’s question was grounded in common sense: why would a
6 devout Christian travel from Roanoke to New York for services
7 simply because it was “familiar” to him? The IJ justifiably
8 found that even if one credited the explanation, it undercut
9 Zhang’s credibility further: as the IJ observed, Zhang had no
10 documentary evidence, in the form of bus tickets and the like,
11 to corroborate this explanation. “[T]he absence of
12 corroboration in general makes an applicant unable to
13 rehabilitate testimony that has already been called into
14 question.” Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir.
15 2007).
16 Zhang’s witness list did not fill that gap. He called none
17 of his 1,000 fellow parishioners from Church of Grace to
18 testify; he explained that “some of them do not have legal
19 status”; but the explanation was partial at best, and the IJ
20 was not compelled to accept it. The agency also reasonably
21 found that Zhang’s credibility was not rehabilitated by his
22 uncle’s testimony that he went to church with Zhang “once,”
6
1 especially since Zhang had asked him to go in order “to be his
2 witness.”
3 Zhang’s credibility was further undermined by the
4 existence of two earlier visa applications, which suggested
5 that he had been trying to leave China before he ever converted
6 to Christianity. Zhang denied knowledge of both applications.
7 On direct examination, Zhang testified that he decided to leave
8 China because his underground church was raided by the police.
9 On cross-examination, he denied having previously sought
10 immigration status in the United States. When the Government
11 presented an alien relative visa application submitted on his
12 behalf by a third party (identified as his father), Zhang said
13 he had never heard of the visa petitioner. Zhang later
14 confirmed that his mother had remarried, but said that he met
15 his stepfather once, knew him only by the name “Asen,” and did
16 not know where he came from. The Government presented evidence
17 that Zhang had been denied a student visa based on “suspected
18 fraud,” and that his record had a “hit” for possible marriage
19 fraud.
20 Given the inconsistencies and implausibilities that cast
21 doubt on Zhang’s claim to be a practicing Christian, as well
22 as discrepancies in applications, which call into question his
7
1 reasons for leaving China, the totality of the circumstances
2 supports the adverse credibility determination. Siewe v.
3 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). Because his
4 applications for withholding of removal and CAT relief were
5 based on the same factual predicate (his Christianity), the
6 adverse credibility determination is dispositive of both.
7
Paul, 444 F.3d at 156-57.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
8
