Filed: Aug. 11, 2017
Latest Update: Mar. 03, 2020
Summary: 13-4735 Zhu v. Sessions BIA Vomacka, IJ A088 805 016 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
Summary: 13-4735 Zhu v. Sessions BIA Vomacka, IJ A088 805 016 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 NOT..
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13-4735
Zhu v. Sessions
BIA
Vomacka, IJ
A088 805 016
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 11th day of August, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 HUI ZHU,
14 Petitioner,
15
16 v. 13-4735
17 NAC
18
19 JEFFERSON B. SESSIONS, III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Farah Loftus, Century City,
25 California.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Anthony P. Nicastro, Senior
29 Litigation Counsel; Yanal H. Yousef,
30 Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 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 is
4 DENIED.
5 Petitioner Hui Zhu, a native and citizen of China, seeks
6 review of a November 25, 2013, decision of the BIA affirming
7 the March 15, 2012, decision of an Immigration Judge (“IJ”)
8 denying her application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re Hui
10 Zhu, No. A088 805 016 (B.I.A. Nov. 25, 2013), aff’g No. A088
11 805 016 (Immig. Ct. N.Y. City Mar. 15, 2012). We assume the
12 parties’ familiarity with the underlying facts and procedural
13 history of this case.
14 The applicable standards of review are well established.
15 See 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,
16 546 F.3d 138, 157-58 (2d Cir. 2008); Xiu Xia Lin v. Mukasey,
17
534 F.3d 162, 163-64 (2d Cir. 2008). Zhu applied for asylum
18 and related relief based on claims of past religious persecution
19 and a fear of future persecution on account of both her religion
20 and the birth of her children in the United States purportedly
21 in violation of China’s population control program.
22 A. Past Persecution
23 The agency concluded that Zhu’s past persecution claim was
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1 not credible. The agency may, “[c]onsidering the totality of
2 the circumstances, . . . base a credibility determination on
3 the demeanor, candor, or responsiveness of the applicant,” and
4 inconsistencies in the record evidence “without regard to
5 whether” those inconsistencies go “to the heart of the
6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
7 Lin, 534 F.3d at 163-64. Substantial evidence supports the
8 agency’s determination that Zhu was not credible as to her claim
9 that she suffered persecution in China on account of her
10 Christian faith.
11 The IJ reasonably relied, in part, on Zhu’s demeanor,
12 noting that she appeared to be acting while testifying. See
13 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430
14 F.3d 77, 81 n.1 (2d Cir. 2005). That finding and the overall
15 credibility determination are bolstered by contradictory
16 evidence regarding whether authorities asked Zhu to sign a
17 confession letter during her alleged detention and whether she
18 signed it. See Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d
19 99, 109 (2d Cir. 2006) (“We can be still more confident in our
20 review of observations about an applicant’s demeanor where, as
21 here, they are supported by specific examples of inconsistent
22 testimony.”); Xiu Xia
Lin, 534 F.3d at 166-67. Having
23 questioned Zhu’s credibility, the agency reasonably relied
3
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1 further on her failure to provide a statement from her husband
2 to corroborate her claim. See Biao Yang v. Gonzales, 496 F.3d
3 268, 273 (2d Cir. 2007); Yan Juan Chen v. Holder,
658 F.3d 246,
4 253 (2d Cir. 2011). Given the demeanor, inconsistency, and
5 corroboration findings, the agency’s adverse credibility
6 determination is supported by substantial evidence. See
7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167.
8 B. Well-Founded Fear of Persecution
9 The agency did not err in finding Zhu’s claimed fear of
10 future religious persecution diminished by the fact that her
11 mother and brother, who practice Christianity in an underground
12 church in China, have remained in that country unharmed since
13 Zhu’s departure in 2004. See Melgar de Torres v. Reno,
191 F.3d
14 307, 313 (2d Cir. 1999). Furthermore, the record evidence
15 provides that tens of millions of Christians practice in
16 unregistered churches in China, and that government officials
17 do not interfere with such practice in some areas of the country.
18 See Jian Xing Huang v. INS,
421 F.3d 125, 128-29 (2d Cir. 2005)
19 (“In the absence of solid support in the record . . . , [an
20 applicant’s] fear is speculative at best”); cf. Jian Hui Shao,
21 546 F.3d at 142-43, 149, 169-70 (finding no error in the agency’s
22 requirement that an applicant demonstrate a well-founded fear
23 of persecution specific to his or her local area when
4
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1 persecutory acts vary according to locality).
2 Finally, for largely the same reasons as this Court set
3 forth in Jian Hui Shao, we find no error in the agency’s
4 determination that Zhu failed to demonstrate her eligibility
5 for relief based on the births of her children in the United
6 States purportedly in violation of China’s population control
7 program. See Jian Hui Shao, 546 F.3d at 158-72.
8 The agency’s conclusion that Zhu failed to demonstrate a
9 credible claim of past persecution or a well-founded fear of
10 future persecution is dispositive of asylum, withholding of
11 removal, and CAT relief. See Paul v. Gonzales,
444 F.3d 148,
12 156-57 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition
17 is DISMISSED as moot. Any pending request for oral argument
18 in this petition is DENIED in accordance with Federal Rule of
19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
20 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
5
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