Hanlin Zhu v. Lynch

14-4242
Zhu v. Lynch
BIA
Christensen, IJ
A200 184 296

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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 16th day of March, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT D. SACK,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 HANLIN ZHU,
14 Petitioner,
15
16 v. 14-4242
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, N.Y.
25
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; John W.
1 Blakeley, Assistant Director; Jason
2 Wisecup, Trial Attorney; Rogendy
3 Toussaint, Law Clerk, Office of
4 Immigration Litigation, United
5 States Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a

9 Board of Immigration Appeals (“BIA”) decision, it is hereby

10 ORDERED, ADJUDGED, AND DECREED that the petition for review is

11 DENIED.

12 Petitioner Hanlin Zhu, a native and citizen of the People’s

13 Republic of China, seeks review of an October 16, 2014, decision

14 of the BIA affirming a February 20, 2013, decision of an

15 Immigration Judge (“IJ”) denying Zhu’s application for asylum,

16 withholding of removal, and relief under the Convention Against

17 Torture (“CAT”). In re Hanlin Zhu, No. A200 184 296 (B.I.A.

18 Oct. 16, 2014), aff’g No. A200 184 296 (Immig. Ct. N.Y. City

19 Feb. 20, 2013). We assume the parties’ familiarity with the

20 underlying facts of and procedural history in this case.

21 Under the circumstances of this case, we consider both the

22 IJ’s and the BIA’s opinions “for the sake of completeness.”

23 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

24 2006). The applicable standards of review are well

25 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

26 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,

2
1 “[c]onsidering the totality of the circumstances,” base a

2 credibility finding on inconsistencies in an asylum applicant’s

3 statements and other record evidence “without regard to

4 whether” they go “to the heart of the applicant’s claim.”

5 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

6 Substantial evidence supports the agency’s determination that

7 Zhu was not credible as to his claims that he was persecuted

8 for protesting the Chinese government’s closure of his retail

9 shop and that he fears future persecution on account of his

10 activities with the Chinese Democracy Party (“CDP”) in the

11 United States.

12 The agency reasonably relied on numerous inconsistencies

13 in the record. For example, Zhu testified that he was detained

14 for fifteen days and mentally tortured. However, his father’s

15 letter, which was prepared in support of Zhu’s asylum

16 application, did not mention this incident. See Xiu Xia Lin,

17 534 F.3d at 166 n.3 (“[a]n inconsistency and an omission are

18 . . . functionally equivalent.”). The agency was not compelled

19 to credit Zhu’s explanation that he wanted to keep such things

20 from his father who is elderly. Zhu’s father was already aware

21 of official threats against Zhu and the detention was the reason

22 Zhu fled China. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

3
1 Cir. 2005) (“A petitioner must do more than offer a plausible

2 explanation for his inconsistent statements to secure relief;

3 he must demonstrate that a reasonable fact-finder would be

4 compelled to credit his testimony.” (internal quotation marks

5 and citations omitted)). Furthermore, although Zhu admitted

6 that his wife knew about his detention, he did not submit a

7 statement from her to corroborate his claim. See Biao Yang v.

8 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (providing that an

9 applicant’s failure to corroborate testimony may bear on

10 credibility, either because the absence of particular

11 corroborating evidence is viewed as suspicious, or because the

12 absence of corroboration in general makes an applicant unable

13 to rehabilitate testimony that has already been called into

14 question).

15 Zhu also made inconsistent statements regarding whether

16 the Chinese government or a private entity recruited him to open

17 his shop. The agency was not compelled to credit his attempts

18 to explain these inconsistencies. See Majidi, 430 F.3d at

19 80-81 & n.1.

20 The agency also reasonably found Zhu’s testimony

21 internally inconsistent and inconsistent with his father’s

22 letter regarding his assertion that Chinese officials had

4
1 discovered his CDP activities and would persecute him as a

2 result. Zhu repeatedly testified that officials threatened

3 his father at the family’s home in Taizhou City in June 2011

4 and that this incident precipitated his family’s move to

5 Shanghai. He then stated inconsistently that he was not sure

6 if this incident occurred at their Taizhou City house before

7 changing his testimony again to state that he was certain that

8 officials had visited that house. Zhu’s testimony in this

9 regard was inconsistent with his father’s letter. The letter,

10 which was dated July 25, 2011, and mailed from Shanghai,

11 asserted that officials had visited and threatened him two days

12 earlier (or on July 23). Zhu failed adequately to explain these

13 inconsistencies. See Majidi, 430 F.3d at 80.

14 While some of the inconsistencies noted by the IJ are

15 relatively minor, the IJ was entitled to rely on the cumulative

16 impact of these inconsistencies. See Tu Lin v. Gonzales, 446

17 F.3d 395, 401-02 (2d Cir. 2006). Ultimately, the agency’s

18 adverse credibility determination is supported by substantial

19 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). That finding

20 is dispositive of asylum, withholding of removal, and CAT

21 relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

22 2006).

5
1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of removal

3 that the Court previously granted in this petition is VACATED,

4 and any pending motion for a stay of removal in this petition

5 is DISMISSED as moot. Any pending request for oral argument

6 in this petition is DENIED in accordance with Federal Rule of

7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8 34.1(b).

9 FOR THE COURT:
10 Catherine O=Hagan Wolfe, Clerk

6