Filed: Oct. 03, 2016
Latest Update: Mar. 03, 2020
Summary: 15-1100 Zhu v. Lynch BIA Christensen, IJ A201 127 158 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
Summary: 15-1100 Zhu v. Lynch BIA Christensen, IJ A201 127 158 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 NO..
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15-1100
Zhu v. Lynch
BIA
Christensen, IJ
A201 127 158
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 October, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 SUSAN L. CARNEY,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 CHUNWU ZHU,
15 Petitioner,
16
17 v. 15-1100
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Chunwu Zu, pro se, Elmhurst, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Anthony
28 P. Nicastro, Acting Assistant
29 Director; Drew C. Brinkman, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 DC.
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 is
4 DENIED.
5 Petitioner Chunwu Zhu, a native and citizen of the People’s
6 Republic of China, seeks review of a March 19, 2015 decision
7 of the BIA affirming an April 11, 2013 decision of an Immigration
8 Judge (“IJ”) denying Zhu’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Chunwu Zhu, No. A201 127 158 (B.I.A. Mar. 19,
11 2015), aff’g No. A201 127 158 (Immig. Ct. N.Y. City Apr. 11,
12 2013). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s opinions “for
15 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528
16 (2d Cir. 2006). The applicable standards of review are well
17 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
18 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
19 For asylum applications like Zhu’s, which are governed by
20 the REAL ID Act, the agency may, “[c]onsidering the totality
21 of the circumstances . . . base a credibility determination on
2
1 the demeanor, candor, or responsiveness of the applicant or
2 witness, the inherent plausibility of the applicant’s or
3 witness’s account,” and inconsistencies in an applicant’s
4 statements when compared with other record evidence “without
5 regard to whether” they go “to the heart of the applicant’s
6 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
7 at 165, 167. Here, the agency’s adverse credibility
8 determination is based on substantial evidence.
9 The IJ reasonably relied on Zhu’s admission that he lied
10 to a United States Bureau of Consular Affairs officer in the
11 Dominican Republic to obtain a transit visa. Zhu testified
12 that he lied when he told the officer that he had lived in the
13 Dominican Republic for six years, owned a nail salon, and wanted
14 a transit visa so he could pass through the United States to
15 China. He stated that he told these lies to increase his
16 chances of receiving a visa. We have held that in certain
17 circumstances “a single instance of false testimony may . . .
18 infect the balance of the alien’s uncorroborated or
19 unauthenticated evidence.” Siewe v. Gonzales,
480 F.3d 160,
20 170 (2d Cir. 2007). Here, Zhu’s admission of dishonesty cast
21 doubt on his entire claim because it showed that his primary
3
1 concern was obtaining a visa, not escaping persecution. The
2 IJ was not required to credit Zhu’s explanation—that his
3 smuggler told him to lie so he could obtain a visa, travel to
4 the United States, and work to repay the smuggler—because that
5 explanation showed only his willingness to lie under oath to
6 obtain immigration benefits. Id.; Majidi v. Gonzales, 430
7 F.3d 77, 80-81 (2d Cir. 2005).
8 Zhu’s admission that he lied is sufficient to support the
9 IJ’s adverse credibility determination because the story he
10 told the consular official was wholly inconsistent with his
11 claim for asylum. Xian Tuan Ye v. DHS,
446 F.3d 289, 295 (2d
12 Cir. 2006). Nonetheless, the determination is supported by an
13 additional inconsistency. Zhu variously said that he lived in
14 the Dominican Republic for more than one year, three years, and
15 six years. As the IJ noted, Zhu testified that he was detained
16 and beaten in China in 2007, only two years prior to his 2009
17 consular interview. Moreover, Zhu did not submit the passport
18 he used when he left China. Therefore, the IJ had no way of
19 verifying that Zhu was in China when he claimed to be detained
20 and beaten by family planning officials. The IJ was entitled
4
1 to rely on these inconsistencies, which cast doubt on the
2 entirety of Zhu’s claim. Xiu Xia Lin, 534 F.3d at 166-67.
3 Finally, the IJ took issue with Zhu’s demeanor during cross
4 examination, noting that Zhu refused to provide yes or no
5 answers to leading questions about his consular interview in
6 the Dominican Republic. We generally afford particular
7 deference to an IJ’s assessment of an applicant’s demeanor, and
8 do so here. Jin Chen v. U.S. Dep’t of Justice,
426 F.3d 104,
9 113 (2d Cir. 2005).
10 Considering the totality of the circumstances—Zhu’s
11 admission that he lied in an attempt to obtain a visa, his
12 inconsistent testimony about how long he lived in the Dominican
13 Republic, and his demeanor—we conclude that the agency’s
14 adverse credibility determination is supported by substantial
15 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534
16 F.3d at 166-67;
Siewe, 480 F.3d at 170. The adverse credibility
17 determination is dispositive of Zhu’s claims for asylum,
18 withholding of removal, and CAT relief, which were all based
19 on the same factual predicate. See Paul v. Gonzales,
444 F.3d
20 148, 156 (2d Cir. 2006).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O=Hagan Wolfe, Clerk
6
