16-2928
Zhang v. Sessions
BIA
Loprest, IJ
A200 923 620
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 1st day of June, two thousand eighteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 TI QIANG ZHANG,
14 Petitioner,
15
16 v. 16-2928
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
24
25 FOR RESPONDENT: Chad A. Readler, Acting
26 Assistant Attorney General;
27 Jessica E. Burns, Senior
28 Litigation Counsel; Juria L.
29 Jones, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Ti Qiang Zhang, a native and citizen of the
6 People’s Republic of China, seeks review of an August 9,
7 2016, decision of the BIA affirming an August 21, 2015,
8 decision of an Immigration Judge (“IJ”) denying Zhang’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Ti
11 Qiang Zhang, No. A200 923 620 (B.I.A. Aug. 9, 2016), aff’g
12 No. A200 923 620 (Immig. Ct. N.Y. City Aug. 21, 2015). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA and reach only the
17 agency’s adverse credibility determination. See Xue Hong
18 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
19 2005). The applicable standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
21 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
2
1 The governing REAL ID Act credibility standard provides
2 that the agency must “[c]onsider[] the totality of the
3 circumstances,” and may base a credibility finding on an
4 applicant’s “demeanor, candor, or responsiveness,” the
5 plausibility of his account, and inconsistencies or
6 omissions in his or his witness’s statements, “without
7 regard to whether” they go “to the heart of the applicant’s
8 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
9 F.3d at 163-64, 166-67. “We defer . . . to an IJ’s
10 credibility determination unless . . . it is plain that no
11 reasonable fact-finder could make such an adverse
12 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For the
13 reasons that follow, we conclude that substantial evidence
14 supports the agency’s finding that Zhang was not credible.
15 Initially, as the Government observes, Zhang has waived
16 review of the agency’s reliance on his omission from his
17 application of the police’s search for him and his post-
18 detention medical treatment by failing to challenge those
19 findings in his brief. Norton v. Sam’s Club, 145 F.3d 114,
20 117 (2d Cir. 1998) (“Issues not sufficiently argued in the
21 briefs are considered waived and normally will not be
22 addressed on appeal.”). These omissions therefore stand as
3
1 appropriate bases for the credibility determination. Xiu
2 Xia Lin, 534 F.3d at 166-67 & n.3 (“An inconsistency and an
3 omission are . . . functionally equivalent” for credibility
4 purposes.).
5 The agency also reasonably based the credibility
6 determination on Zhang’s inconsistent testimony about when
7 his arrest, release from detention, and search by police
8 occurred. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
9 F.3d at 167 (“[A]n IJ may rely on any inconsistency . . .
10 in making an adverse credibility determination as long as
11 the ‘totality of the circumstances’ establishes that an
12 asylum applicant is not credible.”). Although a discrepancy
13 in dates need not be fatal if “minor and isolated,” Diallo
14 v. INS, 232 F.3d 279, 288 (2d Cir. 2000), Zhang’s date
15 discrepancies were extensive and called into question his
16 familiarity with the timeline of his claim. The agency was
17 not required to credit Zhang’s explanation that he was
18 nervous. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
19 2005) (“A petitioner must do more than offer a plausible
20 explanation for his inconsistent statements to secure
21 relief; he must demonstrate that a reasonable fact-finder
4
1 would be compelled to credit his testimony.” (internal
2 quotation marks omitted)).
3 The credibility determination is bolstered by the IJ’s
4 observations of Zhang’s demeanor. See Li Zu Guan v. INS, 453
5 F.3d 129, 140 (2d Cir. 2006). The record reflects that Zhang
6 was nonresponsive to questions on cross examination. While
7 Zhang contends that this characterization is arguable, we do
8 not second guess the IJ’s fact finding unless the record
9 compels a different conclusion. Siewe v. Gonzales, 480 F.3d
10 160, 167-69 (2d Cir. 2007).
11 Finally, Zhang’s challenges to the IJ’s treatment of his
12 corroborating evidence are misplaced. Although Zhang is
13 correct that the IJ failed to notify Zhang of his need to lay
14 foundation for his letters from family, this error does not
15 warrant remand. Li Hua Lin v. U.S. Dep’t of Justice, 453
16 F.3d 99, 106-07 (2d Cir. 2006) (observing that remand is
17 futile if the agency’s “errors are relatively minor in light
18 of the record as a whole”). We see no realistic possibility
19 that the outcome would be different on remand because the IJ
20 also discounted the letters on the ground that their authors
21 were unavailable for cross examination, which is a reasonable
22 basis that Zhang does not challenge here. Matter of H-L-H-
5
1 & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010), overruled
2 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130,
3 133-38 (2d Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324,
4 334 (2d Cir. 2013). Moreover, “[w]e generally defer to the
5 agency’s evaluation of the weight to be afforded an
6 applicant’s documentary evidence.” Y.C., 741 F.3d at 332.
7 The IJ considered the photographic evidence of Zhang’s Falun
8 Gong activities in the United States, but reasonably
9 concluded that it did not rehabilitate Zhang’s inconsistent
10 testimony.
11 Given the foregoing inconsistency, omission, demeanor,
12 and corroboration findings, we conclude that the adverse
13 credibility determination is supported by the “totality of
14 the circumstances.” Xiu Xia Lin, 534 F.3d at 167. The
15 adverse credibility determination is dispositive of asylum,
16 withholding of removal, and CAT relief because all three
17 claims are based on the same factual predicate. See Paul v.
18 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
22 and any pending motion for a stay of removal in this petition
6
1 is DISMISSED as moot. Any pending request for oral argument
2 in this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe
7 Clerk of Court
7