Filed: Apr. 11, 2017
Latest Update: Mar. 03, 2020
Summary: 15-3316 Zhang v. Sessions BIA Poczter, IJ A205 442 970 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
Summary: 15-3316 Zhang v. Sessions BIA Poczter, IJ A205 442 970 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..
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15-3316
Zhang v. Sessions
BIA
Poczter, IJ
A205 442 970
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 April, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 YAN LIN ZHANG,
14 Petitioner,
15
16 v. 15-3316
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23
24 FOR PETITIONER: Lewis G. Hu, New York, N.Y.
25
26
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jefferson B. Sessions III is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
1 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
2 Assistant Attorney General; Emily
3 Anne Radford, Assistant Director;
4 Jesse D. Lorenz, Trial Attorney;
5 Christin M. Mitchell, Law Clerk,
6 Office of Immigration Litigation,
7 United States Department of Justice,
8 Washington D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review is
13 DENIED.
14 Petitioner Yan Lin Zhang, a native and citizen of China,
15 seeks review of a September 29, 2015, decision of the BIA
16 affirming a March 12, 2014, decision of an Immigration Judge
17 (“IJ”) denying Zhang’s application for asylum, withholding of
18 removal, and relief under the Convention Against Torture
19 (“CAT”). In re Yan Lin Zhang, No. A205 442 970 (B.I.A. Sept.
20 29, 2015), aff’g No. A205 442 970 (Immig. Ct. N.Y. City Mar.
21 12, 2014). We assume the parties’ familiarity with the
22 underlying facts and procedural history in this case.
23 Under the circumstances of this case, we have reviewed the
24 IJ’s decision as modified by the BIA (i.e., minus the IJ’s
25 pretermission of asylum on which the BIA did not rely). See
26 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
27 Cir. 2005). The applicable standards of review are well
2
1 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
2 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
3 The governing REAL ID Act credibility standard provides
4 that the agency may, “[c]onsidering the totality of the
5 circumstances,” base a credibility finding on an applicant’s
6 “demeanor, candor, or responsiveness,” the plausibility of her
7 account, and inconsistencies in her statements and other
8 evidence “without regard to whether” those inconsistencies go
9 “to the heart of the applicant’s claim.” 8 U.S.C.
10 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64. “[E]ven
11 where an IJ relies on discrepancies or lacunae that, if taken
12 separately, concern matters collateral or ancillary to the
13 claim, the cumulative effect may nevertheless be deemed
14 consequential by the fact-finder.” Tu Lin v. Gonzales, 446
15 F.3d 395, 402 (2d Cir. 2006) (internal quotation marks and
16 citation omitted). “We defer . . . to an IJ’s credibility
17 determination unless . . . it is plain that no reasonable
18 fact-finder could make such an adverse credibility ruling.”
19 Xiu Xia
Lin, 534 F.3d at 167. Further, “[a] petitioner must
20 do more than offer a plausible explanation for h[er]
21 inconsistent statements to secure relief; [s]he must
22 demonstrate that a reasonable fact-finder would be compelled
3
1 to credit h[er] testimony.” Majidi v. Gonzales, 430 F.3d 77,
2 80 (2d Cir. 2005) (internal quotation marks omitted). For the
3 following reasons, we conclude that substantial evidence
4 supports the agency’s determination that Zhang was not
5 credible.
6 First, the credibility determination is supported by the
7 inconsistency between Zhang’s testimony and application about
8 whether she struggled with police. See Xiu Xia Lin,
534 F.3d
9 at 163-64. Zhang testified that she did not resist arrest or
10 struggle with police when she was arrested for distributing
11 flyers from her underground church. Administrative Record
12 (“A.R.”) at 88, 106. However, she stated in her application
13 that one of the officers “held [her] down.”
Id. at 269. When
14 confronted with this inconsistency, Zhang stated incorrectly
15 that she had testified that she was “grabbed” and later
16 explained incoherently that she “just remember[ed] at the time
17 he arrested me.”
Id. at 106. The agency was not compelled to
18 accept these explanations because they did not explain the
19 discrepancy. See
Majidi, 430 F.3d at 80. The IJ also
20 reasonably found that this was a major inconsistency because
21 it relates to Zhang’s one purported arrest in China. Zhang
22 asserts for the first time on appeal that this inconsistency
4
1 was the result of a translation error; however, we decline to
2 consider this unexhausted argument. See Lin Zhong v. U.S.
3 Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).
4 Second, the agency reasonably based the credibility
5 determination on the submission of Zhang’s aunt’s written
6 statement and the inconsistencies between that statement and
7 her testimony. See Xiu Xia
Lin, 534 F.3d at 163-64; Siewe v.
8 Gonzales,
480 F.3d 160, 170 (2d Cir. 2007). Zhang’s aunt
9 attested in her statement that she visited Zhang’s family in
10 China during the 2012 Spring Festival and that, during the
11 visit, she had learned that Zhang was coming to the United
12 States. A.R. at 220. Zhang’s aunt testified, however, that
13 she was unaware of any Spring Festival in China and, after
14 several questions, admitted that she was illiterate and that
15 Zhang might have authored the statement herself.
Id. at
16 126-27. The agency reasonably relied on Zhang’s submission of
17 this false written statement to find her not credible. See
18
Siewe, 480 F.3d at 170 (providing that an asylum applicant’s
19 presentation of “a single false document or a single instance
20 of false testimony may (if attributable to the petitioner)
21 infect the balance of the alien’s uncorroborated or
5
1 unauthenticated evidence . . . [and] may also influence the IJ’s
2 assessment of . . . the credibility of the petitioner”).
3 Third, the agency reasonably based the credibility
4 determination on the inconsistencies between Zhang’s and her
5 aunt’s testimony. See Xiu Xia Lin, 534 F.3d at 163-64.
6 Zhang’s aunt testified inconsistently with Zhang regarding
7 where they had dinner on New Year’s Eve (at Zhang’s house or
8 a restaurant), whether they saw each other only twice or several
9 times in 2012, and where they first saw each other in the United
10 States. A.R. 103-04, 122, 124-26. Neither Zhang nor her aunt
11 could explain these inconsistencies, and the agency was not
12 compelled to accept Zhang’s aunt’s explanation that she is
13 elderly and has a poor memory,
id. at 104, 125-31. See Majidi,
14 430 F.3d at 80. Although these inconsistencies do not relate
15 to the core of Zhang’s claim, the agency was entitled to rely
16 on them in further support of the credibility determination.
17 See Xiu Xia
Lin, 534 F.3d at 163-64; Tu
Lin, 446 F.3d at 402.
18 Finally, the agency reasonably based the credibility
19 determination on inconsistencies within Zhang’s aunt’s
20 testimony about when she learned of Zhang’s arrest. See Xiu
21 Xia
Lin, 534 F.3d at 163-64. Although Zhang’s aunt’s testimony
22 on this point is somewhat difficult to follow, and she was
6
1 reminded by the IJ to wait for the interpreter to translate the
2 questions prior to answering, A.R. at 126-27, the record
3 supports the agency finding that Zhang’s aunt testified
4 inconsistently about whether she was told of Zhang’s arrest
5 while in China. See Siewe, 480 F.3d at 167 (“Where there are
6 two permissible views of the evidence, the fact finder’s choice
7 between them cannot be clearly erroneous.” (internal quotation
8 marks omitted)). Moreover, even if we were to conclude that
9 this inconsistency finding was erroneous, remand would be
10 futile because “the agency’s ultimate ruling—that the
11 petitioner failed to provide a credible account of past
12 persecution and thus failed to satisfy her burden of proof—is
13 supported by substantial evidence and it is clear that the same
14 decision would be made on remand.” Lianping Li v. Lynch, 839
15 F.3d 144, 150 (2d Cir. 2016).
16 Given the agency’s foregoing inconsistency findings and
17 Zhang’s submission of her aunt’s false statement, the totality
18 of the circumstances supports the adverse credibility
19 determination. See Xiu Xia
Lin, 534 F.3d at 165-66; Tu Lin,
20 446 F.3d at 402;
Siewe, 480 F.3d at 170. A reasonable
21 adjudicator would not be compelled to conclude otherwise. Xiu
22 Xia
Lin, 534 F.3d at 167. The credibility finding is
7
1 dispositive of asylum, withholding of removal, and CAT relief
2 because all three claims are based on the same factual
3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
4 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED.
8 Any pending request for oral argument in this petition is DENIED
9 in accordance with Federal Rule of Appellate Procedure
10 34(a)(2), and Second Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
8
