Yunan Zhu v. Holder

10-1056-ag Zhu v. Holder BIA Lamb, IJ A094 787 868 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 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 24th day of February, two thousand eleven. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 DEBRA ANN LIVINGSTON, 9 DENNY CHIN, 10 Circuit Judges. 11 ______________________________________ 12 13 YUNAN ZHU, 14 Petitioner, 15 16 v. 10-1056-ag 17 NAC 18 ERIC H. HOLDER, JR., 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: G. Victoria Calle, New York, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Russell J. E. Verby, Senior 28 Litigation Counsel; John D. 29 Williams, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, D.C. 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 Yunan Zhu, a native and citizen of the People’s 6 Republic of China, seeks review of a February 25, 2010, 7 order of the BIA affirming the May 27, 2008, decision of 8 Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied 9 Zhu’s application for asylum, withholding of removal, and 10 relief under the Convention Against Torture (“CAT”). In re 11 Yunan Zhu, No. A094 787 868 (B.I.A. Feb. 25, 2010), aff’g 12 No. A094 787 868 (Immig. Ct. N.Y. City May 27, 2008). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history in this case. 15 Under the circumstances of this case, we review both 16 the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 18 2008). The applicable standards of review are well- 19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic 20 v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey, 21 529 F.3d 99, 110 (2d Cir. 2008). For asylum applications, 22 such as Zhu’s, governed by the REAL ID Act, the agency may, 2 1 considering the totality of the circumstances, base a 2 credibility finding on an applicant’s demeanor, the 3 plausibility of his account, or inconsistencies in his 4 statements, without regard to whether they go “to the heart 5 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). 6 Contrary to Zhu’s position, substantial evidence 7 supports the agency’s adverse credibility determination. 8 The agency reasonably relied on Zhu’s inconsistencies in 9 arriving at its decision. See Xiu Xia Lin v. Mukasey, 534 10 F.3d 162, 166-167 (2d Cir. 2008). As the IJ noted, when 11 asked when he learned that his supervisor, the man who 12 introduced him to Falun Gong, was a Falun Gong practitioner, 13 Zhu first said he discovered this in 2002, then changed his 14 answer to 2005, and later reverted to his earlier answer of 15 2002. Similarly, Zhu first testified that he began 16 practicing Falun Gong in May 2004, but later testified that 17 he began practicing in 2005. Zhu also testified that he 18 began practicing Falun Gong in January 2005 and stopped 19 practicing that same month, yet claimed that he practiced 20 Falun Gong for ten months. When confronted with this 21 impossibility, Zhu changed his testimony and stated that he 22 practiced Falun Gong from January 2005 to February 2005, 3 1 about one month. In addition, Zhu’s written application 2 provided that a friend warned him in person that he was 3 going to be arrested, but he testified that the friend 4 called him on the phone. Given these inconsistencies, the 5 agency’s adverse credibility finding is supported by 6 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); 7 see also Xiu Xia Lin, 534 F.3d at 167 (holding that “[w]e 8 defer . . . to an IJ’s adverse credibility determination 9 unless, from the totality of the circumstances, it is plain 10 that no reasonable fact-finder could make such an adverse 11 credibility ruling”). 12 The agency also reasonably relied on implausibilities 13 in Zhu’s testimony in arriving at its adverse credibility 14 determination. In making a finding that an applicant’s 15 claim is inherently implausible, an IJ is not required to 16 “explain in precise detail what made each identified act 17 implausible.” See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 18 (2d Cir. 2007). While “bald” speculation is an 19 impermissible basis for an adverse credibility finding, 20 “[t]he speculation that inheres in inference is not ‘bald’ 21 if the inference is made available to the factfinder by 22 record facts, or even a single fact, viewed in the light of 23 common sense and ordinary experience.” Siewe v. Gonzales, 4 1 480 F.3d 160, 168-69 (2d Cir. 2007). 2 Here, the agency reasonably found it implausible that 3 despite testifying that he did not work, Zhu testified that 4 he was “too busy” to practice Falun Gong more than six or 5 seven times a month and that Zhu did not know the names of 6 any of the countries he passed through on his way to the 7 United States. Similarly, the agency reasonably found it 8 dubious that although Zhu had prepared eight paragraphs 9 detailing his experiences for submission with his asylum 10 application, he was unable to articulate the same 11 information at his merits hearing with any real clarity. 12 Because the agency’s implausibility finding is “tethered to 13 record evidence, and there is nothing else in the record 14 from which a firm conviction of error could properly be 15 derived,” we will not disturb the finding. See Wensheng 16 Yan, 509 F.3d at 67; see also Siewe, 480 F.3d at 169. 17 Zhu also argues that the IJ erred in failing to give 18 him the opportunity to explain non-obvious inconsistencies. 19 The agency may not rest an adverse credibility finding on a 20 non-dramatic, putative inconsistency without first putting 21 the applicant on notice and giving the applicant a chance to 22 reconcile the testimony. Ming Shi Xue v. BIA, 439 F.3d 111, 23 125 (2d Cir. 2006); see also Zhi Wei Pang v. BCIS, 448 F.3d 5 1 102, 109-10 (2d Cir. 2006). However, as Zhu’s 2 inconsistencies were obvious, the agency was not required to 3 solicit an explanation. See Majidi v. Gonzales, 430 F.3d 4 77, 81 (2d Cir. 2005). Furthermore, the record clearly 5 indicates that Zhu had the opportunity to address the 6 discrepancies in his testimony, and in fact took that 7 opportunity on several occasions. Nothing in Zhu’s 8 explanations, however, required the agency to credit them. 9 See id. at 80-81 (holding that in order to secure relief, a 10 petitioner “must do more than offer a plausible explanation 11 for his inconsistent statements . . .; he must demonstrate 12 that a reasonable fact-finder would be compelled to credit 13 his testimony” (emphasis in original) (internal quotation 14 marks omitted)). Nor must the agency “expressly parse or 15 refute on the record each and every one of [an applicant’s] 16 purported explanations for testimonial inconsistencies or 17 evidentiary gaps.” Xiao Ji Chen v. U.S. Dep’t of Justice, 18 471 F.3d 315, 338 n.17 (2d Cir. 2006). 19 Because Zhu’s claims were all based on the same factual 20 predicate, the agency’s adverse credibility determination 21 was a proper basis for the denial of both asylum and 22 withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 23 156 (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 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 7