Filed: Feb. 18, 2016
Latest Update: Mar. 02, 2020
Summary: 13-826 Zhou v. Lynch BIA Nelson, IJ A94 793 308 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 NOTATIO
Summary: 13-826 Zhou v. Lynch BIA Nelson, IJ A94 793 308 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..
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13-826
Zhou v. Lynch
BIA
Nelson, IJ
A94 793 308
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 18th day of February, two thousand sixteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 XIAN ZHOU,
14 Petitioner,
15
16 v. 13-826
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.1
22 _____________________________________
23
1
Loretta E. Lynch is automatically substituted as the
respondent in this case pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
1 FOR PETITIONER: Keith S. Barnett, New York, N.Y.
2
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DISMISSED in part and DENIED in part.
7 Xian Zhou, a native and citizen of China, seeks review
8 of a February 12, 2013, decision of the BIA affirming the
9 November 22, 2010, decision of an Immigration Judge (“IJ”)
10 denying Zhou’s application for asylum, withholding of
11 removal, and relief under the Convention Against Torture
12 (“CAT”). In re Xian Zhou, No. A094 793 308 (B.I.A. Feb. 12,
13 2013), aff’g No. A094 793 308 (Immig. Ct. N.Y. City Nov. 22,
14 2010). We assume the parties’ familiarity with the
15 underlying facts and procedural history of this case.
16 We have reviewed both the BIA’s and IJ’s decisions.
17 See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.
18 2005). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
20 Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
21 Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction
22 to review the agency’s determination that Zhou’s asylum
23 application is untimely. See 8 U.S.C. § 1158(a)(2)(B).
2
1 Although we retain jurisdiction to review “constitutional
2 claims or questions of law,” Zhou merely disputes the
3 agency’s fact finding. 8 U.S.C. § 1252(a)(2)(D). We
4 dismiss his petition as to asylum for lack of jurisdiction.
5 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 333
6 (2d Cir. 2006).
7 We deny the petition as to withholding of removal and
8 CAT relief. For asylum applications, like Zhou’s, governed
9 by the REAL ID Act, the agency may, “[c]onsidering the
10 totality of the circumstances,” base a credibility finding
11 on inconsistencies in the applicant’s statements and other
12 record evidence without regard to whether they go “to the
13 heart of the applicant’s claim,” and the “inherent
14 plausibility” of the applicant’s account. 8 U.S.C.
15 §§ 1158(b)(1)(B)(iii), 1231; Xiu Xia
Lin, 534 F.3d at 163-
16 64. Substantial evidence supports the agency’s adverse
17 credibility determination.
18 In finding Zhou not credible, the agency reasonably
19 relied on the following inconsistencies and
20 implausibilities. First, the record shows that Zhou’s
21 testimony that he saw his witness, Yue Yan Liu, at church
22 the day before his merits hearing was refuted by Liu, who
3
1 testified that she had not attended church for three or four
2 weeks. This inconsistency called into question Zhou’s
3 assertion that he was a practicing Christian. The record
4 also supports the agency’s finding that it was implausible
5 that Zhou was able to leave China--without incident and
6 using his own passport--at a time when Chinese authorities
7 were looking for him, particularly as he was unable to
8 answer questions about when he obtained his passport. See
9 Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009)
10 (declining to disturb an implausibility finding where it is
11 “tethered to the record evidence, and there is nothing else
12 in the record from which a firm conviction of error could
13 properly be derived”).
14 The second implausibility finding is also supported by
15 the record. Zhou testified that both pastors of his
16 American church were unable to attend his hearing because
17 they were both preparing sermons to deliver at 1:30 p.m.
18 that day. Zhou’s explanation for their inability to testify
19 at 8:30 a.m.–-because they were both preparing sermons-–was
20 not one the agency was compelled to accept. See Majidi v.
21 Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
22
4
1 Zhou’s lack of corroboration provided further support
2 to the adverse credibility determination. “An applicant’s
3 failure to corroborate . . . testimony may bear on
4 credibility, because the absence of corroboration in general
5 makes an applicant unable to rehabilitate testimony that has
6 . . . been called into question.” See Biao Yang v.
7 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency’s
8 corroboration determination centered on Zhou’s testimony
9 that Chinese authorities had visited his mother to question
10 her about his whereabouts, and pushed his mother to the
11 ground on one occasion. Comparing his mother’s letter to
12 this testimony, the agency found it significant that the
13 letter did not mention these incidents even though it had
14 been prepared to support Zhou’s application. The agency
15 properly considered this omission in making its adverse
16 credibility determination. Xiu Xia
Lin, 534 F.3d at 166
17 n.3.
18 Nor did the IJ err in finding that Zhou could have
19 provided letters from his father and brother. The IJ was
20 not required to accept Zhou’s explanation that his father
21 did not graduate from elementary school, his mother could
22 not help his father write a letter, and his brother had not
5
1 been caught by authorities and lived with his parents.
2 Zhou’s explanation was, in essence, non-responsive; he did
3 not actually explain why his mother could not help his
4 father or why his brother could not write a letter. See
5 Majidi, 430 F.3d at 80-81.
6 Finally, the IJ’s isolated comment that Zhou seemed to
7 have “selective memory loss” because he could not recall
8 certain events, did not demonstrate bias. Instead, when
9 read in context, the comment seems to distinguish between
10 Zhou’s detailed testimony regarding some aspects of his
11 claim, and the complete lack of information about others.
12 For the foregoing reasons, the petition for review is
13 DISMISSED, in part, and DENIED, in part. As we have
14 completed our review, the pending motion for a stay of
15 removal in this petition is DISMISSED as moot.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
6
