13-3804
Zhang v. Lynch
BIA
Christensen, IJ
A201 128 048
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of December, two thousand fifteen.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
RIJUAN ZHANG,
Petitioner,
v. 13-3804
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.*
_____________________________________
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney
General Loretta E. Lynch is automatically substituted for
former Attorney General Eric H. Holder, Jr. as
Respondent.
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FOR PETITIONER: Troy Nader Moslemi, New York, New
York
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; John S. Hogan, Senior
Litigation Counsel; Nicole N.
Murley, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Rijuan Zhang, a native and citizen of the
People’s Republic of China, seeks review of a September 20,
2013 order of the BIA, affirming the April 23, 2012 decision
of Immigration Judge (“IJ”) Jesse B. Christensen denying
Zhang’s applications for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). See In
re Rijuan Zhang, No. A201 128 048 (B.I.A. Sept. 20, 2013),
aff’g No. A201 128 048 (Immig. Ct. N.Y.C. Apr. 23, 2012).
Zhang sought such relief based on political persecution in the
form of multiple beatings by Chinese authorities when
resisting their efforts to force his wife to have abortions
for violating family planning policy. Under the circumstances
of this case, we review the IJ’s decision as modified by the
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BIA, see Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005), applying well established standards of
review, see 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009). In doing so, we assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
For asylum applications governed by the REAL ID Act,
such as Zhang’s, the IJ may, considering the totality of the
circumstances, base a credibility finding on an asylum
applicant’s demeanor, candor, or responsiveness, and
inconsistencies in his statements and other record evidence,
without regard to whether they go “to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 163-65 (2d Cir. 2008).
Here, inconsistencies and omissions in Zhang’s testimony
and his asylum application and Zhang’s failure to rehabilitate
his credibility with reasonably available corroborating
evidence support the IJ’s credibility determination. Zhang
testified that he went to a hospital to seek medical treatment
after he was detained and beaten in 2000, but his asylum
application and written statement do not mention the hospital
visit. When asked to explain this omission, Zhang stated that
there was nothing to mention. The IJ reasonably found Zhang’s
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explanation unpersuasive. See Diallo v. Gonzales, 445 F.3d
624, 630 (2d Cir. 2006) (stating that IJ is not required to
credit “an asylum applicant’s explanations for apparent
inconsistencies or contradictions in the record”); Xiu Xia Lin
v. Mukasey, 534 F.3d at 166 n.3 (“An inconsistency and an
omission are . . . functionally equivalent.”).
The agency also reasonably relied on internal
inconsistencies in Zhang’s testimony. For example, Zhang
testified inconsistently as to whether the family planning
authorities arrested him in 2000. Zhang’s testimony and
evidence were also contradictory as to whether he applied for
a birth permit in 2000, 2002, or not at all. Zhang’s counsel
acknowledged this inconsistency, arguing that it was minor and
that Zhang only had five years of education. The IJ
reasonably found these explanations insufficient.
Zhang also testified inconsistently regarding whether he
was fired from his job after authorities arrested him in 2010,
or simply did not return to work. Zhang argues that this
inconsistency was “nonexistent” because there was more than
one reason why he did not return to work. Zhang does not
explain, however, why he did not state that he was terminated
when he was first asked why he did not return to work. The
agency reasonably found that Zhang’s failure to mention his
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termination until prompted by the IJ undermined his
credibility, and that his explanation that he “did not listen
clearly” was unpersuasive. See Majidi v. Gonzales, 430 F.3d
77, 80-81 (2d Cir. 2005) (holding that IJ need not accept
plausible explanation for inconsistency unless reasonable
fact-finder would be compelled to do so).
Finally, the agency reasonably found that Zhang failed to
provide reasonably available corroborating evidence sufficient
to rehabilitate his credibility in light of his inconsistent
testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
Cir. 2007). Zhang did not present evidence of either his
alleged medical treatment in 2000 or his wife’s alleged
abortions and sterilization. The IJ also reasonably gave the
letter from Zhang’s wife limited evidentiary weight because
she was an interested witness unavailable for cross-
examination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 342 (2d Cir. 2006) (stating that weight afforded to
applicant’s evidence “lies largely within the discretion of
the IJ” (internal quotation marks omitted)).
In sum, we identify no error in the agency’s adverse
credibility determination. Accordingly, we need not discuss
Zhang’s application for withholding of removal and CAT relief
separately from his claim for asylum, as all three fail for
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lack of credible evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin, 534 F.3d at 167; see also Paul v. Gonzales, 444
F.3d 148, 155-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. Any pending request for oral argument in this
petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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