Filed: Oct. 28, 2013
Latest Update: Mar. 28, 2017
Summary: 12-2648 Zhu v. Holder BIA Nelson, IJ A094 793 291 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
Summary: 12-2648 Zhu v. Holder BIA Nelson, IJ A094 793 291 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 NOTATI..
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12-2648
Zhu v. Holder
BIA
Nelson, IJ
A094 793 291
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 28th day of October, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 DANYING ZHU,
14 Petitioner,
15
16 v. 12-2648
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
26 Assistant Attorney General; John S.
27 Hogan, Senior Litigation Counsel;
28 Laura M.L. Maroldy, Trial Attorney,
29 Office of Immigration Litigation,
30 United 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 DENIED.
5 Danying Zhu, a native and citizen of the People’s
6 Republic of China, seeks review of a June 11, 2012, decision
7 of the BIA affirming the July 13, 2011, decision of
8 Immigration Judge (“IJ”) Barbara A. Nelson, which denied her
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Danying
11 Zhu, No. A094 793 291 (B.I.A. June 11, 2012), aff’g No. A094
12 793 291 (Immig. Ct. N.Y. City July 13, 2011). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have
16 considered both the IJ’s and the BIA’s opinions “for the
17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
18 (2d Cir. 2008) (per curiam). The applicable standards of
19 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
20 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 For applications such as Zhu’s, governed by the
22 amendments made to the Immigration and Nationality Act by
23 the REAL ID Act of 2005, the agency may, “[c]onsidering the
2
1 totality of the circumstances,” base a credibility
2 determination on, among other things, the applicant’s
3 demeanor or the consistency of her statements, “without
4 regard to whether an inconsistency, inaccuracy, or falsehood
5 goes the heart of the applicant’s claim.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
7 F.3d 162, 167 (2d Cir. 2008) (per curiam).
8 The agency reasonably concluded that Zhu’s testimony
9 was undermined by her admission that she lied to immigration
10 officials about her purpose for coming to the United States
11 when she initially crossed the border. See Siewe v.
12 Gonzales,
480 F.3d 160, 170 (2d Cir. 2007). Similarly, the
13 agency reasonably relied on the inconsistency between Zhu’s
14 testimony that she never applied for a visa to come to the
15 United States, and evidence offered by the Department of
16 Homeland Security showing that Zhu applied for a visa in
17 2007, as well as her inconsistent testimony regarding the
18 date of her sterilization in China.
19 While the agency’s credibility finding on its own
20 “constitute[s] sufficient evidence that [a Petitioner]
21 failed to carry his burden of proof,” Zhou Yung Zhang v.
22 INS,
386 F.3d 66, 79 (2d Cir. 2004), the agency strengthened
3
1 the credibility determination by finding that Zhu failed to
2 independently corroborate her claim. Biao Yang v. Gonzales,
3 496 F.3d 268, 273 (2d Cir. 2007) (an asylum applicant’s
4 failure to corroborate his testimony may bear on his
5 credibility “because the absence of corroboration in general
6 makes an applicant unable to rehabilitate testimony that has
7 already been called into question”). The agency did not err
8 in declining to afford probative weight to a letter from
9 Zhu’s father corroborating that the sterilization was
10 involuntary, as he did not have any firsthand knowledge of
11 the events. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
12 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
13 afforded to an applicant’s evidence in immigration
14 proceedings lies largely within the discretion of the
15 agency).
16 Zhu’s challenges to the IJ’s demeanor finding–that the
17 IJ improperly questioned her regarding her previous use of
18 an intrauterine device (“IUD”) and improperly assumed she
19 was untruthful because she showed emotion only when
20 discussing her divorce from her husband, and not while
21 discussing her sterilization procedure– do not compel remand
22 as: (1) the questioning concerning the IUD was not improper;
4
1 (2) this Court gives “particular deference [to the IJ’s
2 demeanor finding] . . . in recognition of the fact that the
3 IJ’s ability to observe the witness’s demeanor places [the
4 IJ] in the best position to evaluate whether apparent
5 problems in the witness’s testimony suggest a lack of
6 credibility,” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d
7 104, 113 (2d Cir. 2005) (internal quotation marks and
8 citation omitted); and (3) remand would be futile because we
9 can predict with confidence – based on the alternative bases
10 supporting the credibility determination described above –
11 that the outcome would not change, see Shunfu Li v. Mukasey,
12
529 F.3d 141, 150 (2d Cir. 2008) (noting that remand is
13 futile when the Court can confidently “predict that the
14 agency would reach the same decision absent the errors that
15 were made”).
16 Given the admitted misrepresentation, inconsistencies,
17 demeanor finding, and lack of corroboration, we defer to the
18 agency’s adverse credibility determination. Xiu Xia Lin,
19 534 F.3d at 167. As the only evidence of a threat to Zhu’s
20 life or freedom depended on her credibility, the adverse
21 credibility determination in this case is dispositive of her
22 claims for asylum, withholding of removal, and CAT relief.
23 See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006);
5
1 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523
2 (2d Cir. 2005).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
6
