Filed: Nov. 14, 2011
Latest Update: Feb. 22, 2020
Summary: 11-571-ag Zou v. Holder BIA Nelson, IJ A095 708 536 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
Summary: 11-571-ag Zou v. Holder BIA Nelson, IJ A095 708 536 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..
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11-571-ag
Zou v. Holder
BIA
Nelson, IJ
A095 708 536
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 14th day of November, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
NA ZOU, AKA WAN XIA JIANG,
Petitioner,
v. 11-571-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gary J. Yerman, New York,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Leslie M. McKay, Assistant
Director; Jessica Segall, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, DC
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 Na Zou, a native and citizen of China, seeks
review of a January 26, 2011, order of the BIA, affirming an
April 30, 2009, decision of Immigration Judge (“IJ”) Barbara
A. Nelson, which denied her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Na Zou, No. A095 708 536
(B.I.A. Jan. 26, 2011), aff’g No. A095 708 536 (Immig. Ct.
N.Y. City Apr. 30, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
When the BIA adopts the decision of the IJ 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). “The
substantial evidence standard of review applies, and we
uphold the IJ’s factual findings if they are supported by
reasonable, substantial, and probative evidence in the
record.” Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir.
2009)(internal quotation marks and citations omitted). For
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applications like Zou’s, governed by the REAL ID Act of
2005, the agency may, after considering the totality of the
circumstances, base a credibility finding on an asylum
applicant’s demeanor, the plausibility of his account, and
inconsistencies in his statements, without regard to whether
they go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
265 (B.I.A. 2007).
In finding Zou not credible, the agency relied on
inconsistencies in the record regarding her purported arrest
and beating by village committee officials. The agency’s
reliance on these inconsistencies was reasonable under the
REAL ID Act. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
(2d Cir. 2008); Matter of J-Y-C-, 24 I. & N. Dec. at 265.
Moreover, the agency was not required to credit Zou’s
various explanations for these inconsistencies: “A
petitioner must do more than offer a plausible explanation
for his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled
to credit his testimony.” Majidi v. Gonzales,
430 F.3d 77,
80-81 (2d Cir. 2005)(emphasis in original)(internal
citations omitted). Because a review of the record indicates
3
that these explanations would not necessarily be compelling
to a reasonable fact-finder, the agency was justified in
reaching its determination.
The agency also reasonably relied on inconsistencies in
the record regarding Zou’s educational history when it
deemed her not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii);
Matter of J-Y-C-, 24 I. & N. Dec. at 260. As the agency
noted, Zou provided conflicting accounts of where and when
she attended school in her first asylum application, her
updated asylum application, and her testimony. Under the
REAL ID Act, although these inconsistencies do not go to the
heart of Zou’s claim, they are a proper basis for the
agency’s adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. at
260. While Zou attempted to explain these inconsistencies
by stating that her initial application was prepared by her
prior counsel and was incomplete, the agency was not
compelled to accept the explanation. See Majidi, 430 F.3d
at 80-81.
Having found Zou not credible, the agency reasonably
noted that her failure to provide corroborative evidence
further undermined her credibility. See Biao Yang v.
4
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). In particular,
the agency found that Zou failed to submit medical records
from her alleged beating and also found that her father’s
first letter failed to mention her arrest and beating, and,
to the contrary, indicated that Zou had not previously
suffered any harm on account of her support for Falun Gong.
In addition, the agency did not err in finding that Zou
failed to establish a well-founded fear of persecution based
on her Falun Gong activities in the United States. See
Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).
While Zou argues that there is a reasonable possibility that
Chinese authorities will become aware of her participation
in public demonstrations in the United States, Zou failed to
present any credible objective evidence demonstrating that
her activities in the United States are known, or easily
could be known, to the Chinese government.
In light of the agency’s adverse findings with respect
to Zou’s credibility, we find that it did not err in denying
Zou’s applications for relief. See Xiu Xia Lin v. Mukasey,
534 F.3d 162, 167 (2d Cir. 2008). See also Paul v.
Gonzales,
444 F.3d 148, 156 (2d Cir. 2006) (holding that the
agency need not analyze separately a withholding of removal
claim based on the same facts as an applicant’s asylum
5
claim); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 523 (2d Cir. 2006) (same, with respect to CAT). For
the foregoing reasons, the petition for review is DENIED.
As we have completed our review, any stay of removal that
the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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