Xie Zhang-Zhou v. Sessions

16-1007 Zhang-Zhou v. Sessions BIA Cheng, IJ A205 338 164 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 11th day of January, two thousand eighteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD C. WESLEY, 10 PETER W. HALL, 11 Circuit Judges. 12 _____________________________________ 13 14 XIE ZHANG-ZHOU, 15 Petitioner, 16 17 v. 16-1007 18 NAC 19 JEFFERSON B. SESSIONS, III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Keith S. Barnett, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting 27 Assistant Attorney General; Eric 28 W. Marsteller, Senior Litigation 29 Counsel; Scott M. Marconda, 30 Trial Attorney, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 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 4 is DENIED. 5 Petitioner Xie Zhang-Zhou, a native and citizen of the 6 People’s Republic of China, seeks review of a March 8, 2016, 7 decision of the BIA affirming an October 27, 2014, decision 8 of an Immigration Judge (“IJ”) denying Zhang-Zhou’s 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Xie 11 Zhang-Zhou, No. A205 338 164 (B.I.A. Mar. 8, 2016), aff’g No. 12 A205 338 164 (Immig. Ct. N.Y. City Oct. 27, 2014). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and the BIA’s decisions “for the sake of 17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 19 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 20 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21 The governing REAL ID Act credibility standard provides 22 that the agency must “[c]onsider[] the totality of the 23 circumstances,” and may base a credibility finding on an 2 1 applicant’s “demeanor, candor, or responsiveness,” the 2 plausibility of his account, and inconsistencies in his or 3 his witness’s statements, “without regard to whether” they 4 go “to the heart of the applicant’s claim.” 8 U.S.C. 5 § 1158(b)(1)(B)(iii); Lin v. Mukasey, 534 F.3d 162, 163-64 6 (2d Cir. 2008) (per curiam). “We defer . . . to an IJ’s 7 credibility determination unless . . . it is plain that no 8 reasonable fact-finder could make such an adverse 9 credibility ruling.” Lin, 534 F.3d at 167. Further, “[a] 10 petitioner must do more than offer a plausible explanation 11 for his inconsistent statements to secure relief; he must 12 demonstrate that a reasonable fact-finder would be 13 compelled to credit his testimony.” Majidi v. Gonzales, 14 430 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks 15 omitted). For the reasons that follow, we conclude that 16 substantial evidence supports the agency’s finding that 17 Zhang-Zhou was not credible. 18 First, the agency reasonably relied on the 19 inconsistencies in and omissions from Zhang-Zhou’s credible 20 fear interview about whether he was arrested, detained, or 21 harmed in China due to his Yiguan Dao religion. See Lin, 22 534 F.3d at 166-67 & n.3 (“An inconsistency and an omission 23 are, for [credibility] purposes, functionally 3 1 equivalent.”); Zhang v. Holder, 585 F.3d 715, 724-25 (2d 2 Cir. 2009) (observing that the agency may base an adverse 3 credibility determination on inconsistencies arising from a 4 credible fear interview). Zhang-Zhou’s statements during 5 his credible fear interview directly contradicted the 6 representations in his application and testimony that he 7 was arrested for practicing Yiguan Dao. At the interview, 8 he stated he was never harmed in China on account of his 9 religion and had never been arrested or detained. The 10 agency reasonably rejected as implausible Zhang-Zhou’s 11 explanation that he did not remember his arrest and 12 detention, when that is why he claims to have fled China in 13 the first place. See Majidi, 430 F.3d at 80; Zhang, 585 14 F.3d at 725 (“We again reject the notion that a 15 petitioner’s claim that she was nervous and distracted 16 during the credible fear interview automatically undermines 17 or negates its reliability as a source of her 18 statements.”). 19 Second, the agency reasonably relied on the omission of 20 Zhang-Zhou’s arrest, detention, and religious practice from 21 his wife’s letter. See Lin, 534 F.3d at 167 (affirming 22 adverse credibility determination based, in part, on 23 omissions from corroborating letters). Zhang-Zhou 4 1 testified that his wife was aware of his practice of Yiguan 2 Dao and had paid to secure his release from detention; 3 however, his wife reported only that she was harassed by 4 the village head and government officials every few days, 5 but did not reference Zhang-Zhou’s practice or arrest. 6 Zhang-Zhou initially explained that his wife did not 7 mention his practice of Yiguan Dao because she was already 8 aware of it. The IJ was not compelled to accept Zhang- 9 Zhou’s explanations for the omission because Zhang-Zhou 10 conceded that the letter was prepared for court and because 11 his responses did not otherwise relate to the omission. 12 See Majidi, 430 F.3d at 80. 13 Third, the agency’s adverse credibility determination 14 is bolstered by the IJ’s observations of Zhang-Zhou’s 15 demeanor. 8 U.S.C. § 1158(b)(1)(B)(iii). “We give 16 particular deference to credibility determinations that are 17 based on the adjudicator’s observation of the applicant’s 18 demeanor,” Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 19 (2d Cir. 2005), particularly where, as here, the demeanor 20 finding is directly linked to an inconsistency in the 21 record, Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d 22 Cir. 2006) (“We can be still more confident in our review 23 of observations about an applicant’s demeanor where, as 5 1 here, they are supported by specific examples of 2 inconsistent testimony.”). 3 Last, the agency reasonably found Zhang-Zhou’s 4 corroborating evidence insufficient to rehabilitate his 5 credibility. See Yang v. Gonzales, 496 F.3d 268, 273 (2d 6 Cir. 2007) (“An applicant’s failure to corroborate his or 7 her testimony may bear on credibility, because the absence 8 of corroboration in general makes an applicant unable to 9 rehabilitate testimony that has already been called into 10 question.”). Although the parties stipulated that Zhang- 11 Zhou’s witness would have testified that Zhang-Zhou 12 attended a Yiguan Dao temple in the United States, the IJ 13 reasonably found this testimony insufficient to 14 rehabilitate Zhang-Zhou’s claim because it did not relate 15 to his allegations of past harm and there was no 16 documentary evidence linking Zhang-Zhou or his witness to 17 the temple. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 18 F.3d 315, 342 (2d Cir. 2006) (observing that the weight 19 accorded to an applicant’s evidence “lie[s] largely within 20 the discretion of the IJ” (internal quotation marks 21 omitted)). 22 Given the demeanor, inconsistency, and omission 23 findings, all of which related to the main basis of Zhang- 6 1 Zhou’s claim—his Yiguan Dao practice and arrest—we conclude 2 that the totality of the circumstances supports the adverse 3 credibility determination. See Lin, 534 F.3d at 165-66; Ye 4 v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) 5 (“Because the [agency] has identified a material 6 inconsistency in an aspect of [petitioner]’s story that 7 served as an example of the very persecution from which he 8 sought asylum, we hold that the inconsistency afforded 9 substantial evidence to support the adverse credibility 10 finding.” (citation and internal quotation marks omitted)). 11 A reasonable adjudicator would not be compelled to conclude 12 otherwise. Lin, 534 F.3d at 167. The credibility finding 13 is dispositive of Zhang-Zhou’s claims for asylum, 14 withholding of removal, and CAT relief because all of these 15 claims are based on the same discredited factual predicate. 16 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our review, the pending 19 motion for a stay of removal in this petition is DISMISSED 20 as moot. 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 7