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