13-788
Zhao v. Holder
BIA
Bukszpan, IJ
A098 970 592
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 9th day of May, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 QIONG ZHAO,
14 Petitioner,
15
16 v. 13-788
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Charles Christophe, Christophe Law
24 Group, P.C., New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Nancy E. Friedman, Senior
28 Litigation Counsel; Kevin J. Conway,
29 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 DISMISSED in part and DENIED in part.
5 Petitioner Qiong Zhao, a native and citizen of China,
6 seeks review of a February 12, 2013 order of the BIA,
7 affirming the April 6, 2011 decision of an Immigration Judge
8 (“IJ”), which pretermitted asylum and denied withholding of
9 removal. In re Qiong Zhao, No. A098 970 592 (B.I.A. Feb.
10 12, 2013), aff’g No. A098 970 592 (Immig. Ct. New York City
11 Apr. 6, 2011). We assume the parties’ familiarity with the
12 underlying facts and procedural history in this case.
13 Under the circumstances of this case, we review the
14 decisions of both the IJ and the BIA. See Yun-Zui Guan v.
15 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
16 The applicable standards of review are well established.
17 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
18 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
19 I. Pretermission of Asylum
20 Title 8, Section 1158(a)(3) of the United States Code
21 provides that no court shall have jurisdiction to review the
22 agency’s finding that an asylum application was untimely
23 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
2
1 changed nor extraordinary circumstances excusing the
2 untimeliness under § 1158(a)(2)(D). However, we retain
3 jurisdiction to review constitutional claims and questions
4 of law. 8 U.S.C. § 1252(a)(2)(D).
5 Before the agency, Zhao contended that she established
6 extraordinary circumstances because she received an ID card
7 that she did not know was fake. The agency rejected this
8 argument because Zhao knew, or should have known, that her
9 ID card was fake given that she is a sophisticated
10 professional, the ID card stated on both sides that it was a
11 non-U.S. Government issued document, she obtained the card
12 from a room in a little building with a metal gate and a
13 doorbell, and the friend who helped her get it told her not
14 to show it to anyone because most Americans are criminals.
15 On appeal, Zhao’s brief fails to acknowledge our
16 jurisdictional limitation and, instead, continues to
17 “quarrel[] over the correctness of the [agency’s] factual
18 findings [and] justification for [its] discretionary
19 choice[.]” See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
20 F.3d 315, 329 (2d Cir. 2006). Because she raises no
21 constitutional claim or question of law, we lack
22 jurisdiction to review the pretermission of asylum.
3
1 II. Credibility-Based Denial of Withholding of Removal
2 For applications such as Zhao’s, which are governed by
3 the REAL ID Act, the agency may base a credibility finding
4 on an applicant’s demeanor, the plausibility of her account,
5 and inconsistencies in her statements, without regard to
6 whether they go “to the heart of the applicant’s claim.” 8
7 U.S.C. § 1158(b)(1)(B)(iii). “We defer therefore to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia
11 Lin, 534 F.3d at 167.
12 Initially, the adverse credibility determination was
13 reasonably based on Zhao’s inconsistent testimony regarding
14 whether her checkups were mandatory after family planning
15 officials gave her an intrauterine device (“IUD”). See 8
16 U.S.C. § 1158(b)(1)(B)(iii). Zhao testified that she had to
17 attend yearly checkups at the family planning office. When
18 asked how family planning officials failed to discover that
19 her IUD was gone, she testified that she did not have to go
20 every year before reverting to her original testimony that
21 checkups were mandatory. Zhao challenges the existence of
22 this inconsistency, but it is clearly reflected on the
23 record.
4
1 The adverse credibility determination was also
2 properly based on the inconsistency between Zhao’s testimony
3 that she had not previously applied for immigration benefits
4 and fraudulent adjustment application claiming that she was
5 an “artist of extraordinary ability” (Zhao is a nurse). See
6 8 U.S.C. § 1158(b)(1)(B)(iii). The agency found that Zhao
7 admitted that the signature on the fraudulent adjustment
8 application was hers. Zhao disputes this characterization
9 of the record and claims she was instead referring to her
10 signature on her asylum application. However, the record
11 reflects that Zhao confirmed that the signatures on both the
12 fraudulent adjustment application and her asylum application
13 were hers. See Siewe v. Gonzalez, 480 F.3d 160, 168 (2d
14 Cir. 2007) (finding that “support for a contrary
15 inference—even one more plausible or more natural—does not
16 suggest error”).
17 The agency’s adverse credibility determination was also
18 properly based on certain implausibilities in Zhao’s
19 testimony. She was a trained professional—she worked as a
20 nurse in a government hospital for sixteen years. But she
21 testified that she did not know about the family planning
22 policy’s pregnancy permit requirement; she did not know
23 whether her hospital performed abortions; and she thought
5
1 that her non-U.S. Government ID card had given her asylum.
2 Zhao contends that she adequately explained why she did not
3 know whether her hospital performed abortions: she worked
4 in the cardiology department. While that explanation is
5 plausible, the agency was not required to credit it because
6 it would not necessarily be compelling to a reasonable
7 fact-finder. Cf. Majidi v. Gonzales, 430 F.3d 77, 80 (2d
8 Cir. 2005).
9 Having questioned Zhao’s credibility, the agency
10 reasonably determined that her failure to provide any
11 medical records, fine receipts, or documentary evidence
12 regarding her family planning violations was suspicious and
13 prevented her from rehabilitating her credibility. See
14 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per
15 curiam) (recognizing that an applicant’s failure to
16 corroborate her testimony may bear on credibility, either
17 because the absence of particular corroborating evidence is
18 viewed as suspicious, or because the absence of
19 corroboration makes an applicant unable to rehabilitate
20 testimony that has already been called into question). We
21 therefore find that the agency’s adverse credibility
22 determination is supported by substantial evidence. Xiu Xia
23 Lin, 534 F.3d at 167.
6
1 For the foregoing reasons, the petition for review is
2 DISMISSED in part and DENIED in part. As we have completed
3 our review, any stay of removal that the Court previously
4 granted in this petition is VACATED, and any pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argument in this petition is
7 DENIED in accordance with Federal Rule of Appellate
8 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
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7