Filed: Jul. 11, 2012
Latest Update: Mar. 26, 2017
Summary: 10-5222-ag (L) Zhou v. Holder BIA Vomacka, IJ A089 198 254 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
Summary: 10-5222-ag (L) Zhou v. Holder BIA Vomacka, IJ A089 198 254 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 T..
More
10-5222-ag (L)
Zhou v. Holder
BIA
Vomacka, IJ
A089 198 254
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 11th day of July, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 NAIQIANG ZHOU,
14 Petitioner,
15
16 v. 10-5222-ag (L);
17 11-2667-ag (Con)
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22
23 _____________________________________
24
25 FOR PETITIONER: Thomas V. Massucci, New York, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Blair T. O’Connor,
30 Assistant Director; Ari Nazarov,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Niaqiang Zhou, a native and citizen of the People’s
11 Republic of China, seeks review of a November 29, 2010,
12 order of the BIA affirming the August 19, 2009, decision of
13 an Immigration Judge (“IJ”), which denied his application
14 for asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Naiqiang Zhou,
16 No. A089 198 254 (B.I.A. Nov. 29, 2010), aff’g No. A089 198
17 254 (Immig. Ct. N.Y. City Aug. 19, 2009). Zhou also seeks
18 review of a May 31, 2011, order of the BIA denying his
19 motion to reopen. In re Naiqiang Zhou, No. A089 198 254
20 (B.I.A. May 31, 2011). We assume the parties’ familiarity
21 with the underlying facts and procedural history in this
22 case.
23 I. 2010 Order of Removal
24 Under the circumstances of this case, we have reviewed
25 the decision of the IJ as supplemented by the BIA. See Yan
2
1 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
2 applicable standards of review are well established.
3 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
4 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
5 For applications such as Zhou’s, governed by the
6 amendments made to the Immigration and Nationality Act by
7 the REAL ID Act of 2005, the agency may, considering the
8 totality of the circumstances, base a credibility finding on
9 the applicant’s “demeanor, candor, or responsiveness,” the
10 plausibility of his account, and inconsistencies in his
11 statements, without regard to whether they go “to the heart
12 of the applicant’s claim.” See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
534 F.3d 162,
14 167 (2d Cir. 2008). We will “defer to an IJ’s credibility
15 determination unless, from the totality of the
16 circumstances, it is plain that no reasonable fact-finder
17 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
18 The IJ’s adverse credibility determination is supported
19 by substantial evidence. The IJ reasonably based his
20 credibility finding on: (1) inconsistencies between Zhou’s
21 testimony that a raid on his house church occurred during a
22 baptism on Easter and a letter from fellow church member Jie
3
1 Bin Hu that failed to mention the raid; (2) Zhou’s evasive
2 demeanor and non-responsive answers in explaining Hu’s
3 omission and his own absence from the baptism; and (3)
4 Zhou’s failure to provide reliable letters from church
5 members present during the Easter raid or the raid during
6 which Zhou allegedly was arrested. Moreover, the IJ
7 reasonably rejected Zhou’s explanation for Hu’s failure to
8 mention the Easter raid. See Majidi v. Gonzales, 430 F.3d
9 77, 80-81 (2d Cir. 2005). Given the inconsistencies between
10 Zhou’s testimony and Hu’s letter, as well as the IJ’s
11 demeanor finding and the lack of reliable corroborating
12 evidence, the totality of the circumstances supports the
13 agency’s adverse credibility determination.
14 Zhou argues that, despite the IJ’s adverse credibility
15 determination, he established a well-founded fear of
16 persecution based on his credible testimony that he
17 practices Christianity and on the background materials he
18 submitted. However, the IJ reasonably found that Zhou, who
19 testified that he attended small house church meetings of
20 eleven members, failed to demonstrate that he would be
21 persecuted in China, because the 2007 and 2008 State
22 Department reports he submitted showed that the Chinese
4
1 government’s treatment of unregistered Christian church
2 members varied, and that small gatherings were “quietly
3 tolerated.” Because Zhou was unable to show the objectively
4 reasonable fear of persecution needed to make out an asylum
5 claim, he was necessarily unable to meet the higher standard
6 required to succeed on a claim for withholding of removal.
7 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
8 II. 2011 Motion to Reopen
9 The BIA’s denial of Zhou’s motion to reopen as untimely
10 was not an abuse of discretion. See Kaur v. BIA,
413 F.3d
11 232, 233 (2d Cir. 2005) (per curiam). A motion to reopen
12 generally must be filed no later than 90 days after the date
13 on which the final administrative decision was rendered in
14 the proceedings sought to be reopened. 8 U.S.C.
15 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
16 dispute that Zhou’s March 2011 motion was untimely, as the
17 final administrative order was issued in November 2010. The
18 time limitation does not apply to a motion to reopen if it
19 is “based on changed circumstances arising in the country of
20 nationality or in the country to which deportation has been
21 ordered, if such evidence is material and was not available
22 and could not have been discovered or presented at the
23 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also
5
1 8 U.S.C. § 1229a(c)(7)(C)(ii). However, substantial
2 evidence supports the BIA’s finding that Zhou failed to
3 establish changed circumstances in China. See Jian Hui Shao
4 v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
5 Zhou contends that the letters he submitted from his
6 wife and friend in China demonstrated changed circumstances
7 in that Chinese officials had become aware of his
8 involvement in house churches and sought to arrest him. As
9 the BIA reasonably found, however, the letter from his wife
10 he submitted at his merits hearing similarly asserted that
11 the Chinese police knew about his church activities and had
12 previously questioned his wife as to his whereabouts.
13 Furthermore, given the underlying adverse credibility
14 determination, the BIA did not abuse its discretion in
15 declining to credit Zhou’s evidence. Qin Wen Zheng v.
16 Gonzales,
500 F.3d 143, 147-48 (2d Cir. 2007).
17 Because the evidence Zhou submitted was insufficient to
18 establish a change in the Chinese government’s treatment of
19 house church members, the BIA did not abuse its discretion
20 in concluding that Zhou failed to meet an exception to the
21 filing deadline and, accordingly, in denying his untimely
22 motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii);
23 8 C.F.R. § 1003.2(c)(2), (3).
6
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, Petitioner’s
3 motion for a stay of removal in this petition is DISMISSED
4 as moot. His pending request for oral argument in this
5 petition is DENIED in accordance with Federal Rule of
6 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
7 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
7
