Filed: Apr. 12, 2019
Latest Update: Mar. 03, 2020
Summary: 17-320 Zhi Hui Zhu v. Barr BIA Chew, IJ A205 621 388 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: 17-320 Zhi Hui Zhu v. Barr BIA Chew, IJ A205 621 388 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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17-320
Zhi Hui Zhu v. Barr
BIA
Chew, IJ
A205 621 388
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 12th day of April, two thousand nineteen.
5
6 PRESENT:
7 REENA RAGGI,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 ZHI HUI ZHU,
14 Petitioner,
15
16 v. 17-320
17 NAC
18 WILLIAM P. BARR,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua E. Bardavid, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Principal Deputy
26 Assistant Attorney General; Derek
27 C. Julius, Assistant Director;
28 Patricia E. Bruckner, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
33
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
4 is DENIED.
5 Petitioner Zhi Hui Zhu, a native and citizen of the
6 People’s Republic of China, seeks review of a January 19,
7 2017, decision of the BIA affirming a February 29, 2016,
8 decision of an Immigration Judge (“IJ”) denying Zhu’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Zhi Hui
11 Zhu, No. A 205 621 388 (B.I.A. Jan. 19, 2017), aff’g No. A 205
12 621 388 (Immig. Ct. N.Y. City Feb. 29, 2016). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of
17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
18 the agency’s factual findings for substantial evidence and
19 its legal conclusions de novo. Y.C. v. Holder,
741 F.3d 324,
20 332 (2d Cir. 2013).
21 Zhu had the burden of proving a well-founded fear of
22 persecution on account of his political activism. 8 U.S.C.
2
1 §§ 1101(a)(42), 1158(b)(1)(B)(i). To do this, he was
2 required to show that he subjectively feared persecution and
3 that his fear was objectively reasonable. Ramsameachire v.
4 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also Jian
5 Xing Huang v. U.S. INS,
421 F.3d 125, 129 (2d Cir. 2005) (“In
6 the absence of solid support in the record,” an asylum
7 applicant’s fear of persecution is “speculative at best.”).
8 He could meet his burden by establishing either “a reasonable
9 possibility he . . . would be singled out individually for
10 persecution” or “a pattern or practice . . . of persecution
11 of a group of persons similarly situated to [him] on account
12 of . . . political opinion” along with his ”own inclusion in,
13 and identification with, such group.” 8 C.F.R.
14 § 1208.13(b)(2)(iii); see also
Y.C., 741 F.3d at 332.
15 Because his claim was based solely on his activities in the
16 United States, Zhu had to show a reasonable possibility that
17 Chinese authorities were either already aware, or likely to
18 become aware, of his political activities in the United
19 States. Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d
20 Cir. 2008).
3
1 In determining whether an asylum applicant has met his
2 burden of proof, the agency considers the credibility of the
3 testimony and any corroborating evidence.
4 The testimony of the applicant may be sufficient to
5 sustain the applicant’s burden without
6 corroboration, but only if the applicant satisfies
7 the trier of fact that the applicant’s testimony is
8 credible, is persuasive, and refers to specific
9 facts sufficient to demonstrate that the applicant
10 is a refugee. In determining whether the applicant
11 has met the applicant’s burden, the trier of fact
12 may weigh the credible testimony along with other
13 evidence of record. Where the trier of fact
14 determines that the applicant should provide
15 evidence that corroborates otherwise credible
16 testimony, such evidence must be provided unless the
17 applicant does not have the evidence and cannot
18 reasonably obtain the evidence.
19
20 8 U.S.C. § 1158(b)(1)(B)(ii). We first address credibility
21 and conclude that the agency’s decision not to credit Zhu’s
22 testimony is supported by substantial evidence. See id.
23 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,
891 F.3d 67, 76-
24 77 (2d Cir. 2018); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-
25 66 (2d Cir. 2008).
26 Considering the totality of the circumstances, and
27 all relevant factors, a trier of fact may base a
28 credibility determination on the demeanor, candor,
29 or responsiveness of the applicant or witness, the
30 inherent plausibility of the applicant’s or
31 witness’s account, the consistency between the
32 applicant’s or witness’s written and oral statements
33 . . ., the internal consistency of each such
34 statement, the consistency of such statements with
35 other evidence of record (including the reports of
4
1 the Department of State on country conditions), and
2 any inaccuracies or falsehoods in such statements,
3 without regard to whether an inconsistency,
4 inaccuracy, or falsehood goes to the heart of the
5 applicant’s claim, or any other relevant factor.
6
7 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
8 credibility determination unless . . . it is plain that no
9 reasonable fact-finder could make such an adverse credibility
10 ruling.” Hong Fei Gao v. Sessions, 891 F.3d at 76, (quoting
11 Xiu Xia
Lin, 534 F.3d at 167); see also 8 U.S.C.
12 § 1252(b)(4)(B).
13 The agency reasonably determined that Zhu’s brief
14 testimony regarding Chinese officials’ alleged visit to his
15 wife in China was not credible. The visit came up for the
16 first time on cross examination, and Zhu provided no details
17 about when the visit occurred, when he learned about it, or
18 what officials said to his wife. See
id. § 1158(b)(1)(B)(ii)
19 (requiring credible and persuasive testimony). Although
20 Zhu’s asylum application was filed in 2012, and Zhu argues
21 that this incident did not occur until after he published an
22 article critical of the Chinese government in 2015, this does
23 not explain why he did not raise the issue earlier. Zhu
24 never amended or supplemented his asylum application, he did
25 not mention the visit during his direct testimony despite
5
1 being directly asked why he thought the Chinese government
2 was aware of his activities in the United States, and he did
3 not corroborate his allegation with a letter from his wife.
4 See id. § 1158(b)(1)(B)(iii); Biao Yang v. Gonzales,
496 F.3d
5 268, 273 (2d Cir. 2007) (“An applicant’s failure to
6 corroborate his or her testimony may bear on credibility,
7 because the absence of corroboration in general makes an
8 applicant unable to rehabilitate testimony that has already
9 been called into question.”); see also Wensheng Yan v.
10 Mukasey,
509 F.3d 63, 66 (2d Cir. 2007) (“It is well settled
11 that, in assessing the credibility of an asylum applicant’s
12 testimony, an IJ is entitled to consider whether the
13 applicant’s story is inherently implausible.”).
14 The agency’s negative demeanor finding further supports
15 the adverse credibility ruling. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of Justice,
17
453 F.3d 99, 109 (2d Cir. 2006) (granting particular deference
18 to credibility findings based on an applicant’s demeanor).
19 The hearing transcript confirms the IJ’s findings that Zhu’s
20 testimony about his time in Germany and the articles he
21 authored was evasive and nonresponsive, particularly as he
6
1 did not produce additional articles he claimed to have
2 authored.
3 Even assuming that Zhu was credible, the agency did not
4 err in concluding that he failed to meet his burden of showing
5 that the government was actually aware of his activities.
6 “[A] failure to corroborate can suffice, without more, to
7 support a finding that an alien has not met his burden of
8 proof.” Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d Cir.
9 2009). Because Zhu could have, but did not, produce a letter
10 from his wife to confirm the visit, the agency did not err in
11 concluding that he failed to meet his burden of proof. See
12 8 U.S.C. § 1158(b)(1)(B)(ii).
13 Zhu’s only other evidence of awareness was speculative
14 and, thus, insufficient to meet his burden of proof. See
15 Jian Xing
Huang, 421 F.3d at 129. Zhu alleged that there
16 were cameras at the protests he participated in and that the
17 Chinese government monitors the internet. The agency did not
18 err in concluding that this evidence was insufficient,
19 especially as Zhu published only a single article. See Y.C.,
20 741 F.3d at 333-34, 336-37. Nor did the agency err in
21 concluding that Zhu failed to show a pattern or practice of
22 persecution of similarly situated pro-democracy activists:
7
1 the State Department’s 2014 Human Rights Report and a news
2 article discussed the arrests of political dissidents who
3 were active within China, but neither mentioned arrests of
4 United States-based activists who returned to China. See 8
5 C.F.R. § 1208.13(b)(2)(iii); Y.C., 742 F.3d at 334-35. The
6 party chairman’s affidavit also provided no objective basis
7 for Zhu’s belief because it only identified harm to
8 individuals engaged in dissident activity in China.
9 In sum, the agency reasonably found that Zhu failed to
10 demonstrate a well-founded fear of persecution as needed for
11 asylum because he did not provide credible testimony or any
12 objective evidence that the Chinese government was aware or
13 likely to become aware of his activities. See Hongsheng
14
Leng, 528 F.3d at 143. Accordingly, Zhu also failed to meet
15 the higher burdens of proof for withholding of removal and
16 CAT relief. See
Y.C., 741 F.3d at 335.
17 For the foregoing reasons, the petition for review is
18 DENIED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
8
