Filed: Mar. 03, 2016
Latest Update: Mar. 02, 2020
Summary: 14-1200 Xiao-Zhen v. Lynch BIA Christensen, IJ A087 926 564 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: 14-1200 Xiao-Zhen v. Lynch BIA Christensen, IJ A087 926 564 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 ..
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14-1200
Xiao-Zhen v. Lynch
BIA
Christensen, IJ
A087 926 564
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 3rd day of March, two thousand sixteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 LIU XIAO-ZHEN,
14 Petitioner,
15
16 v. 14-1200
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jay Ho Lee, New York, New
24 York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Paul Fiorino,
28 Senior Litigation Counsel; Judith R.
1 O’Sullivan, Trial Attorney, Office
2 of 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 is
9 DENIED.
10 Petitioner Liu Xiao-Zhen, a native and citizen of the
11 People’s Republic of China, seeks review of a March 24, 2014,
12 decision of the BIA affirming a March 23, 2012, decision of an
13 Immigration Judge (“IJ”) denying Xiao-Zhen’s application for
14 asylum, withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Liu Xiao-Zhen, No. A087 926 564
16 (B.I.A. Mar. 24, 2014), aff’g No. A087 926 564 (Immig. Ct. N.Y.
17 City Mar. 23, 2012). We assume the parties’ familiarity with
18 the underlying facts and procedural history in this case.
19 Under the circumstances of this case, the Court should
20 consider both the IJ’s and the BIA’s opinions “for the sake of
21 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
22 524, 528 (2d Cir. 2006). The applicable standards of review
23 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
24 v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
2
1 The agency may, “[c]onsidering the totality of the
2 circumstances, . . . base a credibility determination on the
3 demeanor, candor, or responsiveness of the applicant or
4 witness, the inherent plausibility of the applicant’s or
5 witness’s account,” and the consistency in the applicant’s
6 statements “without regard to whether an inconsistency . . .
7 goes to the heart of the applicant’s claim.” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
9 Substantial evidence supports the agency’s determination that
10 Xiao-Zhen was not credible.
11 Xiao-Zhen sought asylum and related relief based on her
12 fear of forced sterilization under China’s family planning
13 policy and her practice of Christianity. In finding her not
14 credible, the IJ reasonably relied on Xiao-Zhen’s demeanor,
15 noting that her testimony was often unresponsive. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,
430 F.3d 77,
17 81 n.1 (2d Cir. 2005). That finding is supported by the record.
18 The IJ’s demeanor finding and the overall credibility
19 determination are bolstered by record inconsistencies
20 regarding how Xiao-Zhen fled from family planning officials in
21 Hunan Province and whether she knew the name of the relative
22 with whom she hid. See Li Hua Lin v. U.S. Dep’t of Justice,
3
1 453 F.3d 99, 109 (2d Cir. 2006); see also Xiu Xia Lin,
534 F.3d
2 at 165-67. Further, the IJ reasonably found implausible
3 Xiao-Zhen’s testimony that, while in hiding, she did not visit
4 her mother at home because she feared family planning officials
5 would discover her, but she nevertheless visited her father,
6 who was in a government-run hospital as a result of a run-in
7 with the very officials Xiao-Zhen claimed to fear. See
8 Wensheng Yan v. Mukasey,
509 F.3d 63, 66-67 (2d Cir. 2007); Siewe
9 v. Gonzales,
480 F.3d 160, 168-69 (2d Cir. 2007). Xiao-Zhen
10 did not provide compelling explanations for these inconsistent
11 and implausible aspects of her testimony. See Majidi,
430 F.3d
12 at 80.
13 Having questioned Xiao-Zhen’s credibility, the agency
14 reasonably relied further on her failure to submit sufficient
15 corroborating evidence to rehabilitate her testimony. See
16 Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007).
17 Xiao-Zhen failed to provide corroborating testimony or
18 affidavits from any of her fellow congregants at her church in
19 the United States.
20 Although the IJ’s remaining inconsistency and
21 implausibility findings may have been impermissibly
22 speculative, see Cao He Lin v. U.S. Dep’t of Justice,
428 F.3d
4
1 391, 405 (2d Cir. 2005);
Siewe, 480 F.3d at 168, remand would
2 be futile given that the error-free findings discussed herein
3 constitute substantial evidence to support the agency’s adverse
4 credibility determination, see Xiao Ji Chen v. U.S. Dep’t of
5 Justice,
471 F.3d 315, 339 (2d Cir. 2006); see also Xiu Xia Lin,
6 534 F.3d at 163-64, 166-67. That determination is dispositive
7 of asylum, withholding of removal, and CAT relief as to
8 Xiao-Zhen’s family planning and religion claims. See Paul v.
9 Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
10 We also find no error in the agency’s alternative finding
11 that, even assuming Xiao-Zhen attends church in the United
12 States, she failed to provide any evidence that authorities are
13 aware of or likely to become aware of her religious practice
14 as required to satisfy her burden of a well-founded fear of
15 persecution. See Hongsheng Leng v. Mukasey,
528 F.3d 135, 143
16 (2d Cir. 2008) (“[T]o establish a well-founded fear of
17 persecution in the absence of any evidence of past persecution,
18 an alien must make some showing that authorities in h[er]
19 country of nationality are either aware of h[er] activities or
20 likely to become aware of h[er] activities.”). This is
21 particularly so given the record evidence that tens of millions
22 of Christians practice in unregistered churches in China.
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O=Hagan Wolfe, Clerk
6
