Ming Zhang v. Lynch

15-135 Zhang v. Lynch BIA Christensen, IJ A201 160 560 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 15th day of June, two thousand sixteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 GERARD E. LYNCH, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MING ZHANG, 14 Petitioner, 15 16 v. 15-135 17 NAC 18 LORETTA E. LYNCH, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gerald Karikari, New York, 24 New York. 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Linda S. 28 Wernery, Assistant Director; 29 Gregory M. Kelch, Trial Attorney, 30 Office of Immigration Litigation, 31 United 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 is 4 DENIED. 5 Petitioner Ming Zhang, a native and citizen of the People’s 6 Republic of China, seeks review of a December 18, 2014, decision 7 of the BIA, affirming a November 22, 2013, decision of an 8 Immigration Judge (“IJ”) denying Zhang’s application for 9 asylum, withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Ming Zhang, No. A201 160 560 11 (B.I.A. Dec. 18, 2014), aff’g No. A201 160 560 (Immig. Ct. N.Y. 12 City Nov. 22, 2013). We assume the parties’ familiarity with 13 the underlying facts and procedural history in this case. 14 Under the circumstances of this case, we have considered 15 both the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 17 524, 528 (2d Cir. 2006). The applicable standards of review 18 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin 19 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency 20 may, “[c]onsidering the totality of the circumstances,” base 21 a credibility finding on inconsistencies in an asylum 22 applicant’s statements and other record evidence “without 2 1 regard to whether” they go “to the heart of the applicant’s 2 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d 3 at 163-64. Substantial evidence supports the agency’s 4 determination that Zhang was not credible. 5 The agency reasonably relied on discrepancies between 6 Zhang’s testimony and his mother’s affidavit regarding his 7 mother’s residence. See Xiu Xia Lin, 534 F.3d at 165-67. His 8 mother’s 2012 affidavit stated that she was residing at the 9 address of the house that Zhang testified Chinese government 10 officials had confiscated and demolished in 2009. Zhang’s 11 explanations for this inconsistency are not compelling. See 12 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). The 13 veracity of his mother’s affidavit is further impugned by the 14 striking similarities between it and Zhang’s own written 15 statement. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 16 517, 524 (2d Cir. 2007); Singh v. BIA, 438 F.3d 145, 148 (2d 17 Cir. 2006). Although Zhang testified that he had not shared 18 or discussed his statement with his mother, both statements 19 detail Zhang’s interactions with police using identical 20 paragraph structure and language, and present the information 21 in exactly the same order. Zhang was given an opportunity to 22 explain these similarities as required, see Matter of R-K-K-, 3 1 26 I. & N. Dec. 658, 661 (B.I.A. 2015), but his explanation that 2 the similarities were coincidental because he and his mother 3 experienced the same events was not compelling, see Majidi, 430 4 F.3d at 80. 5 Given the inconsistency regarding his mother’s residence 6 and the striking similarities between his statement and his 7 mother’s affidavit, both of which relate to the basis of his 8 claim, the agency reasonably found Zhang not credible.* See 9 Xiu Xia Lin, 534 F.3d at 165-66. That finding is dispositive 10 of Zhang’s claims for asylum, withholding of removal, and CAT 11 relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 12 2006). Accordingly, we do not reach the agency’s alternative 13 bases for denying relief. See INS v. Bagamasbad, 429 U.S. 24, 14 25 (1976). 15 16 17 18 * We credit Zhang’s explanation that a translation error caused an inconsistency regarding his father’s residency in Spain. Nevertheless, remand is unnecessary because the IJ’s other findings constitute substantial evidence to support the adverse credibility determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006) (holding that remand is futile when we can “confidently predict” that the agency would reach the same decision absent any errors). 4 1 For the foregoing reasons, the petition for review is 2 DENIED. 3 FOR THE COURT: 4 Catherine O=Hagan Wolfe, Clerk 5