Hui Zhu v. Sessions

13-4735 Zhu v. Sessions BIA Vomacka, IJ A088 805 016 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 11th day of August, two thousand seventeen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 PIERRE N. LEVAL, 10 Circuit Judges. 11 _____________________________________ 12 13 HUI ZHU, 14 Petitioner, 15 16 v. 13-4735 17 NAC 18 19 JEFFERSON B. SESSIONS, III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Farah Loftus, Century City, 25 California. 26 27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 28 General; Anthony P. Nicastro, Senior 29 Litigation Counsel; Yanal H. Yousef, 30 Trial Attorney, 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 DENIED. 5 Petitioner Hui Zhu, a native and citizen of China, seeks 6 review of a November 25, 2013, decision of the BIA affirming 7 the March 15, 2012, decision of an Immigration Judge (“IJ”) 8 denying her application for asylum, withholding of removal, and 9 relief under the Convention Against Torture (“CAT”). In re Hui 10 Zhu, No. A088 805 016 (B.I.A. Nov. 25, 2013), aff’g No. A088 11 805 016 (Immig. Ct. N.Y. City Mar. 15, 2012). We assume the 12 parties’ familiarity with the underlying facts and procedural 13 history of this case. 14 The applicable standards of review are well established. 15 See 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey, 16 546 F.3d 138, 157-58 (2d Cir. 2008); Xiu Xia Lin v. Mukasey, 17 534 F.3d 162, 163-64 (2d Cir. 2008). Zhu applied for asylum 18 and related relief based on claims of past religious persecution 19 and a fear of future persecution on account of both her religion 20 and the birth of her children in the United States purportedly 21 in violation of China’s population control program. 22 A. Past Persecution 23 The agency concluded that Zhu’s past persecution claim was 2 10242016-19 1 not credible. The agency may, “[c]onsidering the totality of 2 the circumstances, . . . base a credibility determination on 3 the demeanor, candor, or responsiveness of the applicant,” and 4 inconsistencies in the record evidence “without regard to 5 whether” those inconsistencies go “to the heart of the 6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 7 Lin, 534 F.3d at 163-64. Substantial evidence supports the 8 agency’s determination that Zhu was not credible as to her claim 9 that she suffered persecution in China on account of her 10 Christian faith. 11 The IJ reasonably relied, in part, on Zhu’s demeanor, 12 noting that she appeared to be acting while testifying. See 13 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 14 F.3d 77, 81 n.1 (2d Cir. 2005). That finding and the overall 15 credibility determination are bolstered by contradictory 16 evidence regarding whether authorities asked Zhu to sign a 17 confession letter during her alleged detention and whether she 18 signed it. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 19 99, 109 (2d Cir. 2006) (“We can be still more confident in our 20 review of observations about an applicant’s demeanor where, as 21 here, they are supported by specific examples of inconsistent 22 testimony.”); Xiu Xia Lin, 534 F.3d at 166-67. Having 23 questioned Zhu’s credibility, the agency reasonably relied 3 10242016-19 1 further on her failure to provide a statement from her husband 2 to corroborate her claim. See Biao Yang v. Gonzales, 496 F.3d 3 268, 273 (2d Cir. 2007); Yan Juan Chen v. Holder, 658 F.3d 246, 4 253 (2d Cir. 2011). Given the demeanor, inconsistency, and 5 corroboration findings, the agency’s adverse credibility 6 determination is supported by substantial evidence. See 7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 8 B. Well-Founded Fear of Persecution 9 The agency did not err in finding Zhu’s claimed fear of 10 future religious persecution diminished by the fact that her 11 mother and brother, who practice Christianity in an underground 12 church in China, have remained in that country unharmed since 13 Zhu’s departure in 2004. See Melgar de Torres v. Reno, 191 F.3d 14 307, 313 (2d Cir. 1999). Furthermore, the record evidence 15 provides that tens of millions of Christians practice in 16 unregistered churches in China, and that government officials 17 do not interfere with such practice in some areas of the country. 18 See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) 19 (“In the absence of solid support in the record . . . , [an 20 applicant’s] fear is speculative at best”); cf. Jian Hui Shao, 21 546 F.3d at 142-43, 149, 169-70 (finding no error in the agency’s 22 requirement that an applicant demonstrate a well-founded fear 23 of persecution specific to his or her local area when 4 10242016-19 1 persecutory acts vary according to locality). 2 Finally, for largely the same reasons as this Court set 3 forth in Jian Hui Shao, we find no error in the agency’s 4 determination that Zhu failed to demonstrate her eligibility 5 for relief based on the births of her children in the United 6 States purportedly in violation of China’s population control 7 program. See Jian Hui Shao, 546 F.3d at 158-72. 8 The agency’s conclusion that Zhu failed to demonstrate a 9 credible claim of past persecution or a well-founded fear of 10 future persecution is dispositive of asylum, withholding of 11 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 12 156-57 (2d Cir. 2006). 13 For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, any stay of removal 15 that the Court previously granted in this petition is VACATED, 16 and any pending motion for a stay of removal in this petition 17 is DISMISSED as moot. Any pending request for oral argument 18 in this petition is DENIED in accordance with Federal Rule of 19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 20 34.1(b). 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 5 10242016-19