Filed: Apr. 18, 2012
Latest Update: Mar. 26, 2017
Summary: 10-4977-ag Zhang v. Holder BIA Abrams, IJ A089 022 957 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
Summary: 10-4977-ag Zhang v. Holder BIA Abrams, IJ A089 022 957 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 N..
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10-4977-ag
Zhang v. Holder
BIA
Abrams, IJ
A089 022 957
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 18th day of April, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 ZHENWEN ZHANG
14 Petitioner,
15
16 v. 10-4977-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Xin Miao, Flushing, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; David V. Bernal, Assistant
27 Director; Jennifer Paisner Williams,
28 Senior Litigation Counsel, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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 DISMISSED in part and DENIED in part.
5 Petitioner Zhenwen Zhang (“Zhang”), a native and
6 citizen of the People’s Republic of China, seeks review of a
7 November 23, 2010, order of the BIA, affirming the December
8 11, 2008, decision of Immigration Judge (“IJ”) Steven R.
9 Abrams, which pretermitted as untimely her application for
10 asylum, and denied withholding of removal and relief under
11 the Convention Against Torture (“CAT”). In re Zhenwen
12 Zhang, No. A089 022 957 (B.I.A. Nov. 23, 2010), aff’g No.
13 A089 022 957 (Immig. Ct. N.Y. City Dec. 11, 2008). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 both the IJ’s and the BIA’s opinions “for the sake of
18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
19 2008) (per curiam) (internal quotation marks omitted). The
20 applicable standards of review are well-established. See 8
21 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
22 513 (2d Cir. 2009).
23
2
1 I. Asylum
2 In pretermitting Zhang’s asylum application as
3 untimely, the agency found that she failed to present clear
4 and convincing evidence that the application was filed
5 within one year of her arrival in the United States. See
6 8 U.S.C. § 1158(a)(2)(B). Zhang’s challenges to the
7 agency’s finding, though formulated in terms of a challenge
8 to the IJ’s application of an improper standard,
9 “essentially dispute[] the correctness of [the] IJ’s fact-
10 finding or the wisdom of his exercise of discretion and
11 raise[] neither a constitutional claim nor a question of
12 law.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
13 329 (2d Cir. 2006). Because we lack jurisdiction to review
14 Zhang’s challenges to the IJ’s fact-finding, we dismiss her
15 petition for review as to asylum. See id.
16 II. Withholding of Removal
17 For applications, such as this one, governed by the
18 REAL ID Act of 2005, the agency may, considering the
19 totality of the circumstances, base a credibility finding on
20 an asylum applicant’s demeanor, the plausibility of his
21 account, and inconsistencies in his statements, without
22 regard to whether they go “to the heart of the applicant’s
3
1 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also Matter of
2 J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007). Analyzed under
3 the REAL ID Act, the agency’s adverse credibility
4 determination is supported by substantial evidence.
5 In finding Zhang not credible, the agency reasonably
6 relied on the IJ’s finding that she lied about when she
7 initially obtained the document entitled “Yanji City Public
8 Security Bureau The Notice for Prisoner’s Family Member,”
9 (hereinafter “Notice”). See Xiu Xia Lin v. Mukasey, 534
10 F.3d 162, 167 (2d Cir. 2008). During her hearing, Zhang
11 testified that she had never seen the Notice before her
12 sister found it in October 2008 and sent it to her from
13 China. As the agency noted, however, this statement was
14 untrue, as Zhang had submitted the Notice together with her
15 original asylum application in September 2007. Contrary to
16 Zhang’s argument that she was not given an opportunity to
17 explain herself, the IJ asked her for an explanation, to
18 which she replied “I don’t know.” Zhang further argues that
19 the agency erred in relying on this inconsistency to find
20 her not credible because the date of her receipt was a
21 “collateral issue.” Under the REAL ID Act, however, the IJ
22 was entitled to rely on “any inaccuracies or falsehoods” in
4
1 Zhang’s testimony “without regard to whether [the]
2 inconsistency, inaccuracy, or falsehood [went] to the heart
3 of [her] claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
4 Having found Zhang’s testimony not credible, the agency
5 reasonably noted that her failure to provide corroboration
6 of her claim further undermined her credibility. See Biao
7 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per
8 curiam); Maladho Djehe Diallo v. Gonzales,
445 F.3d 624,
9 633-34 (2d Cir. 2006). The IJ noted that Zhang failed to
10 provide corroboration of her account from her relatives in
11 China or any documentation verifying the employment from
12 which her claim arose. Although Zhang argues that it would
13 have been dangerous for her relatives to send documents
14 which could have been intercepted by the Chinese
15 authorities, the IJ considered this explanation and did not
16 err in finding it insufficient, particularly in light of the
17 fact that her relatives had been able to send her other
18 documents. See Biao Yang, 496 F.3d at 273; Majidi v.
19 Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005) (holding that
20 the agency need not credit an applicant’s explanations
21 unless those explanations would compel a reasonable
22 factfinder to do so).
23
5
1 Ultimately, because a reasonable fact-finder would not
2 be compelled to conclude to the contrary, the IJ’s adverse
3 credibility determination was supported by substantial
4 evidence. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446
5 F.3d 289, 294 (2d Cir. 2006) (per curiam). Finally,
6 contrary to Zhang’s argument, the agency did not err in
7 failing to give independent consideration to her request for
8 CAT relief, because her CAT claim was based on the same
9 factual predicate as her request for asylum and withholding
10 of removal. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
11 F.3d 520, 523 (2d Cir. 2005).
12 For the foregoing reasons, the petition for review is
13 DISMISSED in part and DENIED in part. As we have completed
14 our review, any stay of removal that the Court previously
15 granted in this petition is VACATED, and any pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17 Any pending request for oral argument in this petition is
18 DENIED in accordance with Federal Rule of Appellate
19 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
6
