Filed: Aug. 18, 2017
Latest Update: Mar. 03, 2020
Summary: 16-1679 Zhu v. Sessions BIA Cheng, IJ A200 930 260 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 NOTA
Summary: 16-1679 Zhu v. Sessions BIA Cheng, IJ A200 930 260 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 NOTAT..
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16-1679
Zhu v. Sessions
BIA
Cheng, IJ
A200 930 260
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 18th day of August, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT D, SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 XUE HUA ZHU,
14 Petitioner,
15
16 v. 16-1679
17 NAC
18 JEFFERSON B. SESSIONS, III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, NY.
24
25 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
26 Attorney General; Bernard A. Joseph,
27 Senior Litigation Counsel; Jason
28 Wisecup, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, 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 Xue Hua Zhu, a native and citizen of the People’s
6 Republic of China, seeks review of an April 29, 2016, decision
7 of the BIA, affirming a November 25, 2014, decision of an
8 Immigration Judge (“IJ”) denying Zhu’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Xue Hua Zhu, No. A200 930 260 (B.I.A.
11 Apr. 29, 2016), aff’g No. A200 930 260 (Immig. Ct. N.Y. City
12 Nov. 25, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
19 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
20 For asylum applications like Zhu’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding an applicant’s
23 “demeanor, candor, or responsiveness,” and on inconsistencies
2
1 in an applicant’s statements and evidence, “without regard to
2 whether” those inconsistencies go “to the heart of the
3 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
4 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility
5 determination unless, from the totality of the circumstances,
6 it is plain that no reasonable fact-finder could make such an
7 adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
8 The agency reasonably relied on the following
9 inconsistencies to render an adverse credibility
10 determination. Zhu testified inconsistently concerning the
11 date of her arrest—an event central to her claim of persecution.
12 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xian Tuan Ye v. Dep’t of
13 Homeland Sec.,
446 F.3d 289, 295 (2d Cir. 2006) (“[A] material
14 inconsistency in an aspect of [an applicant’s] story that served
15 as an example of the very persecution from which he sought
16 asylum . . . afforded substantial evidence to support the
17 adverse credibility finding.”). And the agency was not
18 compelled to credit her explanation of nervousness given that
19 this was the sole basis for her claim of past persecution. See
20 Majidi v. Gonzales,
430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
21 must do more than offer a plausible explanation for his
22 inconsistent statements to secure relief; he must demonstrate
23 that a reasonable fact-finder would be compelled to credit his
3
1 testimony.” (internal quotation marks omitted)).
2 The adverse credibility determination is further bolstered
3 by inconsistencies concerning Zhu’s attendance at a registered
4 government church in China: she gave three different dates for
5 when she stopped attending. See Xiu Xia Lin, 534 F.3d at 167.
6 The church certificate listing her as a member of that church
7 as of 2010 did not resolve the inconsistency. See Majidi,
430
8 F.3d at 80.
9 Zhu was also inconsistent about her church attendance in
10 the United States. A letter from the church confirmed her
11 attendance on Wednesdays, but Zhu testified that she regularly
12 attended on Mondays. The agency was not compelled to credit
13 Zhu’s explanations that she picked the letter up on a Wednesday
14 and that she occasionally attended church on Wednesdays.
Id.
15 Zhu’s dismissal of this inconsistency as trivial is misplaced.
16 The agency may rely on any inconsistency and this one goes to
17 her practice of Christianity, which is central to her fear of
18 religious persecution. See 8 U.S.C. § 1101(a)(42); see Xiu
19 Xia
Lin, 534 F.3d at 167; Xian Tuan
Ye, 446 F.3d at 295.
20 The agency also reasonably relied on an inconsistency
21 concerning a hotel receipt. Zhu’s testimony conflicted with
22 the receipt and, given her repeated emphasis that it was a
23 weekend stay, the agency was not compelled to credit her
4
1 explanation that she made a mistake. See Majidi, 430 F.3d at
2 80. Contrary to Zhu’s position, “an IJ may rely on any
3 inconsistency or omission in making an adverse credibility
4 determination,” where, as here, “the ‘totality of the
5 circumstances’ establishes that an asylum applicant is not
6 credible.” Xiu Xia
Lin, 534 F.3d at 167 (quoting 8 U.S.C.
7 § 1158(b)(1)(B)(iii)).
8 The adverse credibility determination is further supported
9 by the IJ’s demeanor finding, to which we defer, particularly
10 where, as here, the record reflects Zhu’s difficulty answering
11 questions about her arrest.
Majidi, 430 F.3d at 81 n.1; cf.
12 Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir.
13 2006) (“We can be still more confident in our review of
14 observations about an applicant’s demeanor where, as here, they
15 are supported by specific examples of inconsistent
16 testimony.”). Zhu now suggests that this evasiveness was a
17 product of the interpretation, alleging that her best dialect
18 is Foo Chow, but the hearing was in Mandarin. This argument
19 is not properly before us because Zhu did not raise it before
20 the IJ or BIA, Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104,
21 123-25 (2d Cir. 2007), and the transcript does not reflect
22 interpretation difficulty.
23 Finally, the agency did not err in determining that Zhu’s
5
1 evidence did not rehabilitate her testimony about either her
2 past harm or her practice of Christianity. Biao Yang v.
3 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
4 failure to corroborate [her] . . . testimony may bear on
5 credibility, because the absence of corroboration in general
6 makes an applicant unable to rehabilitate testimony that has
7 already been called into question.”). The fine receipt from
8 China lists Zhu as the payer, but Zhu testified that her father
9 paid the fine. And Zhu’s pastors did not testify and thus could
10 not resolve the inconsistency relating to her church attendance
11 in the United States. Finally, Zhu mischaracterizes what
12 transpired at the hearing regarding a witness. Her counsel
13 withdrew the witness, who appears to have been offered only to
14 corroborate Zhu’s entry into the United States—a point not at
15 issue—because the witness had not provided a necessary waiver.
16 Given the multiple inconsistencies, the demeanor finding,
17 and the lack of rehabilitative corroborating evidence, the
18 totality of the circumstances supports the adverse credibility
19 determination. Xiu Xia
Lin, 534 F.3d at 167. The adverse
20 credibility determination is dispositive of asylum,
21 withholding of removal, and CAT relief because all three forms
22 of relief are based on the same factual predicate. Paul v.
23 Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
6
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
7
