Filed: Apr. 10, 2017
Latest Update: Mar. 03, 2020
Summary: 15-3721 Zhang v. Sessions BIA Christensen, IJ A205 442 849 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: 15-3721 Zhang v. Sessions BIA Christensen, IJ A205 442 849 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 T..
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15-3721
Zhang v. Sessions
BIA
Christensen, IJ
A205 442 849
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 10th day of April, two thousand seventeen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 SHAOQIANG ZHANG,
14 Petitioner,
15
16 v. 15-3721
17 NAC
18 JEFFERSON B. SESSIONS, III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Yongbing Zhang, Law Offices
24 of Yongbing Zhang, Chicago,
25 IL.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal
28 Deputy Assistant Attorney
29 General; Linda S. Wernery,
30 Assistant Director; William
31 C. Minick, Trial Attorney;
1 Office of Immigration
2 Litigation, U.S. Department
3 of Justice, Washington, DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Shaoqiang Zhang, a native and citizen of China,
10 seeks review of an October 20, 2015, decision of the BIA
11 affirming a May 2, 2014, decision of an Immigration Judge (“IJ”)
12 denying Zhang’s application for asylum, withholding of removal,
13 and relief under the Convention Against Torture (“CAT”). In
14 re Shaoqiang Zhang, No. A205 442 849 (B.I.A. Oct. 20, 2015),
15 aff’g No. A205 442 849 (Immig. Ct. N.Y. City May 2, 2014). We
16 assume the parties’ familiarity with the underlying facts and
17 procedural history in this case.
18 Under the circumstances of this case, we have reviewed both
19 the BIA’s and IJ’s decisions. Guan v. Gonzales, 432 F.3d 391,
20 394 (2d Cir. 2005). The applicable standards of review are well
21 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
22 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
23 For asylum applications like Zhang’s, governed by the REAL
24 ID Act, the agency may, “[c]onsidering the totality of the
25 circumstances,” base a credibility finding on an asylum
2
1 applicant’s “demeanor, candor, or responsiveness,” the
2 plausibility of his account, and inconsistencies in his
3 statements, “without regard to whether” those inconsistencies
4 go “to the heart of the applicant’s claim.” 8 U.S.C.
5 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64.
6 “We defer . . . to an IJ’s credibility determination unless,
7 from the totality of the circumstances, it is plain that no
8 reasonable fact-finder could make such an adverse credibility
9 ruling.” Xiu Xia
Lin, 534 F.3d at 167. Further, “[a]
10 petitioner must do more than offer a plausible explanation for
11 his inconsistent statements to secure relief; he must
12 demonstrate that a reasonable fact-finder would be compelled
13 to credit his testimony.” Majidi v. Gonzales,
430 F.3d 77,
14 80-81 (2d Cir. 2005) (internal quotation marks omitted). For
15 the reasons that follow, we conclude that substantial evidence
16 supports the agency’s finding that Zhang was not credible.
17 First, the agency reasonably based the credibility
18 determination on the omissions from Zhang’s application
19 concerning his guarantee statement and reporting requirement.
20 Xiu Xia
Lin, 534 F.3d at 166-68; see also
id. at 166 n.3 (“An
21 inconsistency and an omission are . . . functionally equivalent”
22 for credibility purposes). Zhang testified that he signed a
23 guarantee statement in which he promised to report to the police
3
1 station, that he reported to the police once a month for eight
2 months, and that the police continue to threaten his family
3 members for his failure to report. Zhang’s application,
4 however, omitted any reference to the guarantee statement, his
5 reporting requirement, or the police’s threats. The IJ was not
6 compelled to credit Zhang’s explanation for these omissions.
7 See Majidi, 430 F.3d at 80.
8 Second, the agency reasonably based the credibility
9 determination on the omission from Zhang’s wife’s letters that
10 the police had threatened her for Zhang’s failure to report.
11 See Xiu Xia
Lin, 534 F.3d at 167 (explaining that omission of
12 fact from family member’s letter “could have reasonably
13 convinced the IJ that [the] story of persecution was
14 fabricated”). Zhang testified that the people who called his
15 wife identified themselves as being from the “South City Public
16 Security Bureau.” Administrative Record (“A.R.”) 91.
17 However, Zhang’s wife’s first letter makes no mention of
18 threatening calls, and her second letter states that the calls
19 were from “stranger[s].” A.R. 107. The IJ was not required
20 to accept Zhang’s explanation that his wife referred to the
21 callers as strangers because she did not know them personally.
22 See
Majidi, 430 F.3d at 80.
4
1 Third, the agency reasonably based the credibility finding
2 on the omission from Zhang’s mother’s letter that the family
3 had been threatened by the police due to Zhang’s failure to
4 report. Xiu Xia Lin, 534 F.3d at 167. Zhang’s mother’s letter
5 does not mention threats; however, Zhang testified that the
6 police had made threatening calls to his “family members.”
7 A. 78. Zhang does not challenge the agency’s reliance on this
8 omission on appeal.
9 Finally, the adverse credibility determination was
10 properly based on the inconsistency between Zhang’s testimony
11 and evidence about whether Zheng, or anyone in his family, had
12 kept in touch with his friend who owned the Falun Gong books
13 found in Zhang’s home. See Xiu Xia
Lin, 534 F.3d at 163-64.
14 Zhang testified that neither he nor his family has had recent
15 contact with the friend. However, Zhang submitted a letter
16 from the friend in support of his application. When confronted
17 with this discrepancy, Zhang testified that his wife obtained
18 the letter through the friend’s family. The IJ reasonably
19 found Zhang’s testimony and supporting evidence inconsistent,
20 and he was not compelled to accept Zhang’s corresponding
21 explanation. See Siewe v. Gonzales,
480 F.3d 160, 167 (2d Cir.
22 2007) (“Decisions as to . . . which of competing inferences to
23 draw are entirely within the province of the trier of fact.”
5
1 (alteration in original) (quoting Palazzo ex rel Delmage v.
2 Corio, 232 F.3d 38, 44 (2d Cir. 2000)));
Majidi, 430 F.3d at
3 80.
4 Given the foregoing omission and inconsistency findings,
5 the totality of the circumstances supports the adverse
6 credibility determination. See Xiu Xia
Lin, 534 F.3d at 167.
7 That determination is dispositive of Zhang’s claims for asylum,
8 withholding of removal, and CAT relief because all three claims
9 are based on the same factual predicate. See Paul v. Gonzales,
10
444 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
6
