Filed: Sep. 09, 2020
Latest Update: Sep. 09, 2020
Summary: 17-525 Zhu v. Barr BIA Nelson, IJ A205 145 256 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: 17-525 Zhu v. Barr BIA Nelson, IJ A205 145 256 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 ..
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17-525
Zhu v. Barr
BIA
Nelson, IJ
A205 145 256
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 9th day of September, two thousand twenty.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROSEMARY S. POOLER,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 JIA XING ZHU,
14 Petitioner,
15
16 v. 17-525
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant
26 Attorney General; Cindy S.
27 Ferrier, Assistant Director;
28 Michelle Y.F. Sarko, Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, 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
4 is DENIED.
5 Petitioner Jia Xing Zhu, a native and citizen of the
6 People’s Republic of China, seeks review of a January 31,
7 2017, decision of the BIA affirming an April 5, 2016, decision
8 of an Immigration Judge (“IJ”) denying Zhu’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Jia Xing Zhu, No.
11 A 205 145 256 (B.I.A. Jan. 31, 2017), aff’g No. A 205 145 256
12 (Immig. Ct. N.Y. City Apr. 5, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Because the BIA affirmed the decision of the IJ without
16 opinion, we have reviewed the IJ’s decision as the final
17 agency determination. See Shunfu Li v. Mukasey, 529 F.3d
18 141, 146 (2d Cir. 2008). The applicable standards of review
19 are well established. See 8 U.S.C. § 1252(b)(4)(B); see also
20 Chuilu Liu v. Holder,
575 F.3d 193, 196 (2d Cir. 2009)
21 (reviewing factual findings underlying burden of proof
2
1 determinations under the substantial evidence standard);
2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009)
3 (reviewing questions of law and application of law to fact de
4 novo). The agency did not err in finding that Zhu failed to
5 satisfy her burden of proof given problems with her testimony
6 and corroborating evidence relating to her alleged arrest and
7 detention in China for attending an underground church and
8 her failure to submit available evidence of her practice of
9 Christianity in both China and the United States.
10 “The testimony of the applicant may be sufficient to
11 sustain the applicant’s burden without corroboration, but
12 only if the applicant satisfies the trier of fact that the
13 applicant’s testimony is credible, is persuasive, and refers
14 to specific facts sufficient to demonstrate that the
15 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
16 also Chuilu
Liu, 575 F.3d at 196-97. “In determining whether
17 the applicant has met [her] burden, the trier of fact may
18 weigh the credible testimony along with other evidence of
19 record. Where the trier of fact determines that the
20 applicant should provide evidence that corroborates otherwise
21 credible testimony, such evidence must be provided unless the
3
1 applicant does not have the evidence and cannot reasonably
2 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). “No
3 court shall reverse a determination made by a trier of fact
4 with respect to the availability of corroborating evidence
5 . . . unless the court finds . . . that a reasonable trier of
6 fact is compelled to conclude that such corroborating
7 evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
8 The IJ reasonably required corroboration given Zhu’s
9 vague testimony about the events surrounding her arrest,
10 beating, and the extent of her resultant injuries. See
11 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196-
12 97. Zhu testified that after police raided her church and
13 arrested her and 18 fellow congregants, she was taken to the
14 police station and “beat up.” When pressed for more detail,
15 Zhu said that police asked her why she had joined an
16 underground church, “caught” her head and pushed her against
17 a wall, and kicked her a few times in the leg, which caused
18 bruising and swelling “all over [her] body.” Despite filing
19 a medical document, Zhu did not testify that she was treated
20 for her injuries while in custody or that she sought treatment
21 when released a week later. The IJ reasonably required
4
1 corroboration to verify the extent, if any, of Zhu’s injuries,
2 which implicated whether the harm alleged constituted
3 persecution. Indeed, while we have held that “non-life-
4 threatening violence and physical abuse” can constitute past
5 persecution, Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d
6 Cir. 2006), the harm suffered must be sufficiently severe,
7 see Jian Qui Liu v. Holder,
632 F.3d 820, 822 (2d Cir. 2011)
8 (clarifying that a beating that occurs within the context of
9 an arrest or detention does not constitute persecution per se
10 and ruling that “minor bruising” did not rise to the level of
11 persecution).
12 Other aspects of Zhu’s testimony lacked detail, which
13 further justified the IJ’s reliance on the lack of
14 corroboration. See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu,
15 575 F.3d at 196–97. For example, Zhu did not know what
16 happened to her fellow parishioners despite being detained
17 with 18 of them for a week at the same police station. And
18 when asked whether anyone from her underground church
19 supported her asylum application, Zhu replied that a former
20 co-worker mailed a copy of his identification card. Though
21 unclear what the identification card would have corroborated,
5
1 the IJ accurately noted that no such evidence was in the
2 record.
3 Moreover, the IJ properly identified the missing
4 evidence. See Chuilu Liu, 575 F.3d at 198-99. Zhu testified
5 that she had attended the same Methodist church in Brooklyn
6 since her baptism in November 2012, yet she did not present
7 testimony or letters from fellow church members or clergy.
8 Although Zhu testified that the U.S. church members did not
9 want to be involved with the government and her pastor would
10 not testify because she did not attend church regularly, a
11 reasonable fact-finder would not be compelled to conclude
12 that no evidence was available, such as a letter from the
13 pastor to confirm Zhu’s baptism. See 8 U.S.C. § 1252(b)(4);
14 cf. Majidi v. Gonzales,
430 F.3d 77, 80 (2d Cir. 2005) (“A
15 petitioner must do more than offer a plausible explanation
16 for h[er] inconsistent statements to secure relief; [s]he
17 must demonstrate that a reasonable fact-finder would be
18 compelled to credit h[er] testimony.” (internal quotation
19 marks omitted)). Similarly, the IJ did not err in requiring
20 evidence from Zhu’s younger sister in light of Zhu’s testimony
21 that her sister had recently arrived in the United States and
6
1 was also a Christian. Nor was it unduly speculative for the
2 IJ to expect that Zhu’s sister—who lived in China while Zhu
3 was worshipping at an underground church—would know something
4 about Zhu’s Christian faith, particularly given their common
5 faith and Zhu’s alleged arrest and detention. See Siewe v.
6 Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“The
7 speculation that inheres in inference is not ‘bald’ if the
8 inference is made available to the factfinder by record facts
9 . . . in the light of common sense and ordinary experience.”).
10 Moreover, Zhu provided no explanation for the absence of this
11 evidence. See Chuilu
Liu, 575 F.3d at 199 (upholding denial
12 of withholding of removal for lack of corroboration where
13 petitioner failed to “explain[] the absence of such
14 corroborating evidence”).
15 Finally, the IJ did not err in declining to credit the
16 remainder of Zhu’s evidence and in finding it insufficient to
17 meet her burden. The letter from Zhu’s pastor in China did
18 not corroborate or even mention the arrests of Zhu and her
19 fellow parishioners. See
Siewe, 480 F.3d at 168–69. The IJ
20 also did not err in questioning the authenticity of Zhu’s
21 medical document because spaces for the date of intake, date
7
1 of discharge, and the case number, were left blank. See Y.C.
2 v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the
3 agency’s determination of the weight afforded to an alien’s
4 documentary evidence.”). Nor was the IJ required to credit
5 an unsworn, undated, and unsigned letter from Zhu’s older
6 sister in China.
Id. (deferring to agency’s determination
7 that letter from alien’s spouse in China was entitled to “very
8 little weight” “because it was unsworn and because it was
9 submitted by an interested witness”); Matter of H-L-H- & Z-
10 Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that
11 letters from alien’s friends and family were insufficient
12 support for alien’s claims because they were from interested
13 witnesses not subject to cross-examination), overruled on
14 other grounds by Hui Lin Huang v. Holder,
677 F.3d 130, 133–
15 38 (2d Cir. 2012).
16 Given the lack of detailed testimony and reliable
17 corroboration, the agency did not err in finding that Zhu
18 failed to satisfy her burden of establishing past persecution
19 on account of her Christian faith. See 8 U.S.C.
20 § 1158(b)(1)(B)(ii); Chuilu
Liu, 575 F.3d at 196-98. That
21 finding is dispositive of asylum, withholding of removal, and
8
1 CAT relief because all three claims were based on the same
2 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-
3 57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
9
