Zhen Min Zou v. Sessions

15-3736 Zou v. Sessions BIA Christensen, IJ A205 443 068 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 26th day of April, two thousand seventeen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 ZHEN MIN ZOU, 14 Petitioner, 15 16 v. 15-3736 17 NAC 18 JEFFERSON B. SESSIONS III, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: James A. Lombardi, Law Office of 24 James A. Lombardi, P.C., New York, 25 N.Y. 26 27 FOR RESPONDENT: Benjamin C. Mizer, Principal 28 Deputy Assistant Attorney 29 General; Shelley R. Goad, 30 Assistant Director; Russell J.E. 31 Verby, Senior Litigation Counsel, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, D.C. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review is 8 DENIED. 9 Petitioner Zhen Min Zou, a native and citizen of China, 10 seeks review of a November 6, 2015, decision of the BIA affirming 11 a March 4, 2014, decision of an Immigration Judge (“IJ”) denying 12 Zou’s application for asylum, withholding of removal, and 13 relief under the Convention Against Torture (“CAT”). In re 14 Zhen Min Zou, No. A205 443 068 (B.I.A. Nov. 6, 2015), aff’g No. 15 A205 443 068 (Immig. Ct. N.Y. City Mar. 4, 2014). We assume 16 the parties’ familiarity with the underlying facts and 17 procedural history in this case. 18 We have reviewed the decisions of both the IJ and the BIA. 19 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The 20 applicable standards of review are well established. See 21 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 22 165-66 (2d Cir. 2008). 23 The governing REAL ID Act credibility standard provides 24 that the agency must “[c]onsider[] the totality of the 2 1 circumstances,” and may base an adverse credibility finding on 2 an applicant’s “demeanor, candor, or responsiveness,” the 3 plausibility of his account, and inconsistencies in his or his 4 witness’s statements, “without regard to whether” they go “to 5 the heart of the applicant’s claim.” 8 U.S.C. 6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “[E]ven 7 where an IJ relies on discrepancies or lacunae that, if taken 8 separately, concern matters collateral or ancillary to the 9 claim, the cumulative effect may nevertheless be deemed 10 consequential by the fact-finder.” Tu Lin v. Gonzales, 446 11 F.3d 395, 402 (2d Cir. 2006) (internal quotation marks and 12 citation omitted). “We defer . . . to an IJ’s credibility 13 determination unless . . . it is plain that no reasonable 14 fact-finder could make such an adverse credibility ruling.” 15 Xiu Xia Lin, 534 F.3d at 167. Further, “[a] petitioner must 16 do more than offer a plausible explanation for his inconsistent 17 statements to secure relief; he must demonstrate that a 18 reasonable fact-finder would be compelled to credit his 19 testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) 20 (internal quotation marks omitted). For the reasons that 21 follow, we conclude that substantial evidence supports the 22 agency’s adverse credibility determination. 3 1 First, the agency reasonably relied on an inconsistency 2 between Zou’s testimony and his church’s letter concerning how 3 often he attended church in the United States. See Xiu Xia Lin, 4 534 F.3d at 163-64; Tu Lin, 446 F.3d at 402. Zou testified that 5 he had attended church every week since February 2012; however, 6 the letter that Zou provided from his church stated that he had 7 attended church 21 to 25 times between May 2012 and April 2013. 8 When confronted with this discrepancy, Zou responded that his 9 church’s “annual obligations” only required him to attend more 10 than 25 times; he then explained that he had testified that he 11 attended weekly because he was “too nervous” and did not 12 understand the question. The agency was not compelled to 13 accept these explanations. See Majidi, 430 F.3d at 80. 14 Second, the agency reasonably relied on Zou’s inconsistent 15 testimony about how he found his U.S. church. See Xiu Xia Lin, 16 534 F.3d at 163-64; Tu Lin, 446 F.3d at 402. Zou testified that 17 he found the church himself; however, he later testified that 18 a friend introduced him to the church after he was unable to 19 find one on his own. When confronted with this discrepancy, 20 Zou stated that he had misspoken earlier because he was nervous. 21 The agency was not compelled to accept this explanation, and 22 the IJ reasonably questioned why Zou had not submitted a 4 1 supporting letter from his friend, who resided in the United 2 States and had also purportedly attended Zou’s underground 3 church in China. See Majidi, 430 F.3d at 80; Biao Yang v. 4 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (An applicant’s 5 failure to corroborate testimony may bear on credibility, 6 either because the absence of particular evidence is viewed as 7 suspicious, or “because the absence of corroboration in general 8 makes an applicant unable to rehabilitate testimony that has 9 already been called into question.”). 10 Third, the agency reasonably relied on extensive 11 inconsistencies between Zou’s testimony and that of his U.S. 12 church witness, Chen, about their church attendance together. 13 See Xiu Xia Lin, 534 F.3d at 163-64; Tu Lin, 446 F.3d at 402. 14 First, Zou testified that he never attended the meals after the 15 sermons and, specifically, that he had never attended a meal 16 with Chen. However, Chen testified that Zou had joined her at 17 the meals multiple times. Second, Zou testified that he 18 attended church for the first time on a Tuesday but Chen 19 testified that there are no services on Tuesdays. Third, Zou 20 testified that he last attended church with Chen the Sunday 21 before the hearing at 10:45am and that he had seen Chen at church 22 on a Monday one week before the hearing. However, Chen 5 1 testified that she has only attended 9:00am Sunday services for 2 the past month due to her health. In response to these 3 inconsistencies, Zou argues that the inconsistencies arising 4 from Chen’s testimony should not have affected his credibility 5 because Chen is 80 years old. However, as the agency observed, 6 it was Zou’s decision to offer Chen as a witness, and he “offered 7 no evidence suggesting that her memory or other physical 8 condition accounts for their entirely discrepant testimony.” 9 The agency therefore did not err in rejecting Zou’s explanation 10 for these inconsistencies. See Majidi, 430 F.3d at 80. 11 Lastly, the IJ reasonably found that Zou’s corroborating 12 evidence did not rehabilitate his credibility because his 13 letters were from witnesses unavailable for cross-examination 14 and his remaining documentation from China was unauthenticated 15 by any means. See In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 16 215 (B.I.A. 2010) (finding that unsworn letters from alien’s 17 friends and family were insufficient to provide substantial 18 support for alien’s claims because authors were interested 19 witnesses not subject to cross-examination), overruled on other 20 grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d 21 Cir. 2012); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 22 148 (2d Cir. 2007). Zou does not challenge this finding in his 6 1 brief, and so it stands as an appropriate basis for the adverse 2 credibility determination. 3 Zou argues that the adverse credibility determination 4 cannot be supported by a totality of the circumstances because 5 his testimony was consistent with his application and 6 documentary evidence regarding the events that occurred in 7 China. However, it is appropriate for the IJ to make a negative 8 credibility determination based on inconsistencies “without 9 regard to whether” they go “to the heart of the applicant’s 10 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d 11 at 163-64. And an IJ may “rel[y] on discrepancies or lacunae 12 that, if taken separately, concern matters collateral or 13 ancillary to the claim” if their “cumulative effect . . . is 14 deemed consequential.” Tu Lin, 446 F.3d at 402. Here, the IJ 15 reasonably concluded that “[w]hile the 16 discrepancies . . . concern [Zou’s] practice of Christianity 17 in the United States, given the amount of those discrepancies, 18 the Court finds not credible the entirety of [Zou’s] asylum 19 application.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 20 534 F.3d at 165-66; Tu Lin, 446 F.3d at 402. A reasonable 21 adjudicator would not be compelled to conclude otherwise. See 22 Xiu Xia Lin, 534 F.3d at 167. The credibility finding is 7 1 dispositive of asylum, withholding of removal, and CAT relief 2 because all three claims are based on the same factual 3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 4 2006). 5 For the foregoing reasons, the petition for review is 6 DENIED. 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 8