Qian Jing Zhou v. Sessions

16-2900 Zhou v. Sessions BIA Vomacka, IJ A205 429 496 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 8th day of September, two thousand seventeen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 ROBERT D. SACK, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 QIAN JING ZHOU, 14 Petitioner, 15 16 v. 16-2900 17 NAC 18 JEFFERSON B. SESSIONS III, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gerald Karikari, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; John S. Hogan, 27 Assistant Director; Lindsay 28 Corliss, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 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 Qian Jing Zhou, a native and citizen of the 6 People’s Republic of China, seeks review of a July 29, 2016, 7 decision of the BIA, affirming a July 20, 2015, decision of an 8 Immigration Judge (“IJ”) denying Zhou’s application for asylum, 9 withholding of removal, and relief under the Convention Against 10 Torture (“CAT”). In re Qian Jing Zhou, No. A205 429 496 (B.I.A. 11 July 29, 2016), aff’g No. A205 429 496 (Immig. Ct. N.Y. City 12 July 20, 2015). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 We have reviewed the IJ’s decision as modified by the BIA, 15 and so address only the adverse credibility determination. See 16 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d 17 Cir. 2005). The applicable standards of review are well 18 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (reviewing adverse 20 credibility determinations for substantial evidence). 21 For asylum applications like Zhou’s, governed by the REAL 22 ID Act, the agency may, “[c]onsidering the totality of the 23 circumstances,” base a credibility finding on inconsistencies 2 1 and omissions in an applicant’s statements and evidence, 2 “without regard to whether” those inconsistencies go “to the 3 heart of the applicant’s claim.” 8 U.S.C. 4 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64 & 166 n.3. 5 However, the more central an inconsistency is to a claim of past 6 persecution, the more substantial it is. See Xian Tuan Ye v. 7 Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006). “We 8 defer . . . to an IJ’s credibility determination unless, from 9 the totality of the circumstances, it is plain that no 10 reasonable fact-finder could make such an adverse credibility 11 ruling.” Xiu Xia Lin, 534 F.3d at 167. We conclude that the 12 agency’s adverse credibility determination rests on 13 substantial evidence. 14 The agency reasonably found Zhou not credible based on the 15 omission from the church letter of her arrest and detention, 16 which was the event central to her claim of persecution. See 17 8 U.S.C. § 1158(b)(1)(B)(iii); Xian Tuan Ye, 446 F.3d at 295 18 (“[A] material inconsistency in an aspect of [an applicant’s] 19 story that served as an example of the very persecution from 20 which he sought asylum . . . afforded substantial evidence to 21 support the adverse credibility finding.”); Xiu Xia Lin, 534 22 F.3d at 166-67 & n.3 (“An inconsistency and an omission 23 are . . . functionally equivalent” for credibility purposes). 3 1 Zhou’s fluctuating and contradictory explanations do not compel 2 a different conclusion because she expressly testified that the 3 letter was offered to corroborate her alleged arrest and 4 detention. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 5 2005) (“A petitioner must do more than offer a plausible 6 explanation for his inconsistent statements to secure relief; 7 he must demonstrate that a reasonable fact-finder would be 8 compelled to credit his testimony.” (internal quotation marks 9 omitted). 10 The IJ also reasonably declined to otherwise afford weight 11 to the church letter, finding it questionable and implausible 12 that an underground church in China, operating secretly, would 13 need a letterhead and seal for its documents. “We defer to the 14 agency’s determination of the weight afforded to an alien’s 15 documentary evidence.” Y.C. v. Holder, 741 F.3d 324, 334 (2d 16 Cir. 2013); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 17 342 (2d Cir. 2006) (holding that weight afforded to evidence 18 is largely within IJ’s discretion). This inference was 19 sufficiently grounded in record and was not “based on 20 speculation,” given Zhou’s testimony that her church was small 21 in order to avoid detection by the police. Siewe v. Gonzales, 22 480 F.3d 160, 168-69 (2d Cir. 2007) (an implausibility finding 23 based on inference is reasonable if grounded in “record facts, 4 1 or even a single fact, viewed in the light of common sense and 2 ordinary experience”). Zhou’s argument that the IJ erred in 3 requiring official authentication is misplaced. Cf. Cao He Lin 4 v. U.S. Dep’t of Justice, 428 F.3d 391 (2d Cir. 2006). Here, 5 the IJ simply questioned the veracity of the church letter as 6 “uncharacteristic of a small informal underground house church 7 seeking to remain secret.” We “afford IJs considerable 8 flexibility in determining the authenticity of such documents 9 from the totality of the evidence and in using documents found 10 to be authentic in making an overall assessment of the 11 credibility of a petitioner’s testimony and, ultimately, of her 12 persecution claim.” Shunfu Li v. Mukasey, 529 F.3d 141, 149 13 (2d Cir. 2008); see also Siewe, 480 F.3d at 167 (“Decisions as 14 to . . . which of competing inferences to draw are entirely 15 within the province of the trier of fact.” (internal quotation 16 marks omitted)). 17 Nor did the IJ err in declining to give weight to the 18 remainder of the corroborating evidence or in finding it 19 insufficient to rehabilitate Zhou’s claim. “An applicant’s 20 failure to corroborate his . . . testimony may bear on 21 credibility, because the absence of corroboration in general 22 makes an applicant unable to rehabilitate testimony that has 23 already been called into question.” Biao Yang v. Gonzales, 496 5 1 F.3d 268, 273 (2d Cir. 2007); see also 8 U.S.C. 2 § 1158(b)(1)(B)(ii). Zhou provided no objective evidence to 3 corroborate her husband’s testimony that he attended church in 4 the U.S. with her and the IJ reasonably gave his testimony 5 diminished weight: the church letters did not mention him, he 6 previously applied for asylum based on a different form of 7 Christianity, and he was an interested witness. See Y.C., 741 8 F.3d at 334; Xiao Ji Chen, 471 F.3d at 342. Nor did the country 9 conditions evidence rehabilitate the claim. As the IJ found, 10 the background evidence in the record identified no incidents 11 of persecution in Zhou’s home province of Fujian. See Jian Hui 12 Shao v. Mukasey, 546 F.3d 138, 142, 148, 156-57, 165, 170 (2d 13 Cir. 2008). 14 Given the inconsistencies concerning the sole incident of 15 past harm, it cannot be said “that no reasonable fact-finder 16 could make such an adverse credibility ruling.” Xiu Xia Lin, 17 534 F.3d at 167; Xian Tuan Ye, 446 F.3d at 295. The adverse 18 credibility determination is dispositive of asylum, 19 withholding of removal, and CAT relief because all three forms 20 of relief are based on the same factual predicate. Paul v. 21 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 22 For the foregoing reasons, the petition for review is 23 DENIED. As we have completed our review, any stay of removal 6 1 that the Court previously granted in this petition is VACATED, 2 and any pending motion for a stay of removal in this petition 3 is DISMISSED as moot. Any pending request for oral argument 4 in this petition is DENIED in accordance with Federal Rule of 5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 6 34.1(b). 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 7