15-128
Zhu v. Lynch
BIA
Christensen, IJ
A205 029 995
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 14th day of November, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 BARRINGTON D. PARKER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIU WEN ZHU,
14 Petitioner,
15
16 v. 15-128
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhou Wang, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; John W.
27 Blakeley, Assistant Director;
28 Katharine E. Clark, Senior
29 Litigation Counsel; Madeline E.
30 Dang, Law Clerk, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 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 DISMISSED IN PART and DENIED IN PART.
5 Petitioner Xiu Wen Zhu, a native and citizen of China, seeks
6 review of a December 22, 2014, decision of the BIA affirming
7 an August 1, 2013, decision of an Immigration Judge (“IJ”)
8 denying Zhu’s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Xiu Wen Zhu, No. A205 029 995 (B.I.A. Dec. 22, 2014), aff’g
11 No. A205 029 995 (Immig. Ct. N.Y. City Aug. 1, 2013). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 We have reviewed the IJ’s decision as modified by the BIA.
15 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
16 (2d Cir. 2005). The applicable standards of review are well
17 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
18 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
19 I. Asylum
20 We dismiss Zhu’s petition as it relates to the agency’s
21 pretermission of his asylum application as untimely. An asylum
22 application must be filed within one year of an applicant’s
23 arrival in the United States, absent changed or extraordinary
2
1 circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). We lack
2 jurisdiction to review a denial of asylum on timeliness grounds.
3 8 U.S.C. § 1158(a)(3). Although we retain jurisdiction to
4 review “constitutional claims or questions of law,” 8 U.S.C.
5 § 1252(a)(2)(D), Zhu does not raise any such claim. He
6 challenges only the credibility determination on which the
7 timeliness ruling was based. Accordingly, he challenges only
8 factual findings that we do not have jurisdiction to review in
9 this context. See Xiu Xia Lin, 534 F.3d at 165 (observing that
10 credibility is a factual finding reviewed for substantial
11 evidence).
12 II. Credibility
13 Although we cannot reach the adverse credibility
14 determination in addressing asylum, we have jurisdiction to
15 review it in considering the denial of withholding of removal
16 and CAT relief. Having done so, we conclude that substantial
17 evidence supports the agency’s decision.
18 For applications like Zhu’s, governed by the REAL ID Act,
19 the agency may, “[c]onsidering the totality of the
20 circumstances,” base a credibility finding on an applicant’s
21 “demeanor, candor, or responsiveness,” the plausibility of his
22 account, and inconsistencies in his or his witness’s
23 statements, “without regard to whether” those inconsistencies
3
1 go “to the heart of the applicant’s claim.” 8 U.S.C.
2 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
3 defer . . . to an IJ’s credibility determination unless, from
4 the totality of the circumstances, it is plain that no
5 reasonable fact-finder could make such an adverse credibility
6 ruling.” Xiu Xia Lin, 534 F.3d at 167.
7 The credibility determination was properly based on the
8 extensive inconsistences between the testimony of Zhu and his
9 “one-year witness” in support of his asylum application, and
10 internal inconsistencies in the witness’s testimony. See 8
11 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
12 For example, Zhu testified that he had not seen the witness since
13 April 2010; but the witness testified that Zhu has lived with
14 him in Brooklyn for the past two years. The witness also
15 testified inconsistently regarding where he was living and
16 working and for how long he had been working in Louisiana; when
17 and how he had been in contact with Zhu just prior to Zhu’s
18 arrival in New York; and what he had done the morning of the
19 hearing. To the extent that the witness testified that he had
20 been ill and had seen a doctor that morning to account for his
21 inconsistent testimony, the agency reasonably rejected the
22 explanation as there was no supporting evidence and the
23 testimony was inconsistent with prior testimony. See Majidi
4
1 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
2 do more than offer a plausible explanation for his inconsistent
3 statements to secure relief; he must demonstrate that a
4 reasonable fact-finder would be compelled to credit his
5 testimony.” (internal quotation marks omitted)).
6 The credibility determination is further supported by the
7 omission of Zhu’s arrest and detention from his Chinese pastor’s
8 letter. See Xiu Xia Lin, 534 F.3d at 166-67 & n.3 (“An
9 inconsistency and an omission are . . . functionally equivalent”
10 for credibility purposes). The letter states that Zhu attended
11 church activities and passionately spread the Gospel; however,
12 it says nothing of Zhu’s purported arrest and detention for
13 attending the church. Although Zhu asserted that his pastor
14 omitted this information because the sole purpose of the letter
15 was to corroborate Zhu’s membership in the underground church,
16 the agency was not required to credit this explanation. See
17 Majidi, 430 F.3d at 80; Xiu Xia Lin, 534 F.3d at 166-67 & n.3.
18 Zhu does not explicitly challenge the agency’s conclusion
19 that his corroborating evidence was entitled to minimal weight
20 and was therefore insufficient to rehabilitate his credibility.
21 See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
22 (“Issues not sufficiently argued in the briefs are considered
23 waived and normally will not be addressed on appeal.”). And
5
1 disregarding this waiver, the agency did not err in concluding
2 that the lack of reliable corroboration further undermined
3 Zhu’s credibility. Biao Yang v. Gonzales, 496 F.3d 268, 273
4 (2d Cir. 2007) (recognizing that “[a]n applicant’s failure to
5 corroborate his . . . testimony may bear on credibility, because
6 the absence of corroboration in general makes an applicant
7 unable to rehabilitate testimony that has already been called
8 into question” or is viewed as suspicious). The agency
9 reasonably gave minimal weight to the letters from Zhu’s mother,
10 friend, and fellow church member in China on the ground that
11 they were from interested witnesses not subject to cross
12 examination. See Matter of H-L-H- & Z-Y- Z-, 25 I. & N. Dec.
13 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui Lin Huang
14 v. Holder, 677 F.3d 130 (2d Cir. 2012).
15 Based on the foregoing inconsistencies, omission, and
16 insufficient corroboration, the totality of the circumstances
17 supports the credibility determination. Xiu Xia Lin, 534 F.3d
18 at 167. Zhu’s challenge to the credibility determination is
19 that even if the testimony on the one-year issue was entirely
20 fabricated, it should have no bearing on the remaining testimony
21 and evidence in support of his claim. We disagree. See Siewe
22 v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“In the
23 immigration context, corroborating evidence is often limited,
6
1 and the petitioner’s credibility is almost always crucial. So
2 a single false document or a single instance of false testimony
3 may (if attributable to the petitioner) infect the balance of
4 the alien’s uncorroborated or unauthenticated evidence.”).
5 Moreover, Zhu ignores that the credibility determination was
6 also based on the omission of his arrest and detention from his
7 Chinese pastor’s letter, which directly related to his main
8 claim of past harm in China.
9 The credibility determination is dispositive of
10 withholding of removal and CAT relief because both claims were
11 based on the same factual predicate. Paul v. Gonzales, 444 F.3d
12 148, 156-57 (2d Cir. 2006). We therefore deny Zhu’s petition
13 as it relates to the denials of these forms of relief.
14 For the foregoing reasons, the petition for review is
15 DISMISSED IN PART and DENIED IN PART.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
7