Filed: Sep. 28, 2011
Latest Update: Feb. 22, 2020
Summary: 10-1915-ag Zhu v. Holder BIA Videla, IJ A077 997 825 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 NO
Summary: 10-1915-ag Zhu v. Holder BIA Videla, IJ A077 997 825 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 NOT..
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10-1915-ag
Zhu v. Holder
BIA
Videla, IJ
A077 997 825
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of September, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 LI PING ZHU
14 Petitioner,
15
16 v. 10-1915-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Li Ping Zhu, pro se, Bayside, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; John S. Hogan, Senior
27 Litigation Counsel; Laura Maroldy,
28 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Petitioner Li Ping Zhu, a native and citizen of the
10 People’s Republic of China, seeks review of an April 19,
11 2010, order of the BIA, affirming the May 12, 2008, decision
12 of Immigration Judge (“IJ”) Gabriel C. Videla, which denied
13 her application for asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”). In re
15 Li Ping Zhu, No. A077 997 825 (B.I.A. Apr. 19, 2010), aff’g
16 Nos. A077 997 825 (Immig. Ct. N.Y. City May 12, 2008). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the decision of the IJ as supplemented by the BIA. See Xian
21 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 293, (2d
22 Cir. 2006). The applicable standards of review are well-
23 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
24 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
25 In pre-REAL ID Act cases, such as this one,
2
1 inconsistencies that form the basis of an adverse
2 credibility determination must “bear a legitimate nexus” to
3 the applicant’s claim of persecution and be “substantial”
4 when measured against the record as a whole. Secaida-
5 Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003). On the
6 other hand, an IJ is entitled to rely on the cumulative
7 effect of even minor inconsistencies. See Tu Lin v.
8 Gonzales,
446 F.3d 395, 402 (2d Cir. 2006); Liang Chen v.
9 U.S. Attorney Gen.,
454 F.3d 103, 106-107 (2d Cir. 2006).
10 Here, because the IJ identified numerous inconsistencies in
11 Zhu’s testimony and evidence, substantial evidence supports
12 the adverse credibility determination. See Tu Lin,
446 F.3d
13 at 402.
14 First, the IJ noted that although Zhu testified that
15 after she fled China government officials detained her
16 husband for an hour, this assertion was omitted from her
17 asylum application. Contrary to Zhu’s argument that the IJ
18 erred by conflating omissions with inconsistencies, we have
19 recognized that both types of discrepancies may support an
20 adverse credibility determination and are in this context
21 “functionally equivalent.” Xiu Xia Lin v. Mukasey,
534 F.3d
22 162, 166 n.3 (2d Cir. 2008). The IJ considered Zhu’s
3
1 explanation that she did not think she had to mention this
2 fact in her asylum application, and reasonably found it
3 insufficient. See Majidi v. Gonzales, 430 F.3d 77, 80-81
4 (2d Cir. 2005); see also Tu
Lin, 446 F.3d at 402.
5 The adverse credibility determination is further
6 supported by Zhu’s inconsistent testimony regarding her
7 husband’s detention. Zhu initially testified that her
8 husband had telephoned her to tell her about his detention,
9 but later stated that he had not mentioned his detention in
10 his letters because he did not want to cause her worry. Zhu
11 then said that her son, not her husband, had told her of the
12 detention. Furthermore, Zhu initially testified that she
13 never went to the American Embassy to get a visa. But when
14 confronted with evidence reflecting that she had applied for
15 a visa three times, she conceded that she had in fact
16 applied. Although Zhu explained that she had understood the
17 original question to mean while she was in the United
18 States, the record does not reflect any ambiguity in the
19 original question. Thus, the IJ was entitled to disregard
20 her explanation. See
Majidi, 430 F.3d at 80-81.
21 Zhu also argues that the IJ erred in failing to
22 consider withholding of removal separately, because that
4
1 claim was also based on her fear of harm due to her illegal
2 departure. Because Zhu failed to raise any claim based on
3 her illegal departure before the BIA, however, we decline to
4 address this unexhausted argument. See Lin Zhong v. U.S.
5 Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).
6 Contrary to Zhu’s contention, the IJ addressed her request
7 for CAT relief, and reasonably concluded that Zhu failed to
8 demonstrate that she was more likely than not to face
9 torture in China. See Mu Xiang Lin v. U.S. Dep’t of
10 Justice,
432 F.3d 156, 160 (2d Cir. 2005).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
5
