18-2512
Zhang v. Barr
BIA
Conroy, IJ
A095 725 165
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 16th day of September, two thousand twenty.
5
6 PRESENT:
7 JON O. NEWMAN,*
8 JOSEPH F. BIANCO,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 LINGHUA ZHANG,
14 Petitioner,
15
16 v. 18-2512
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Theodore N. Cox, Esq., New York,
24 NY.
25
* Circuit Judge Peter W. Hall, originally a member of the panel, is
currently unavailable. Circuit Judge Jon O. Newman has replaced Judge
Hall on the panel for this matter. See 2d Cir. IOP E(b).
1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
2 General; Holly M. Smith, Senior
3 Litigation Counsel; David Kim,
4 Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Linghua Zhang, a native and citizen of the
13 People’s Republic of China, seeks review of a July 31, 2018
14 decision of the BIA affirming a September 8, 2017 decision of
15 an Immigration Judge (“IJ”), which denied Zhang’s application
16 for asylum, withholding of removal, and relief under the
17 Convention Against Torture (“CAT”). In re Linghua Zhang, No.
18 A 095 725 165 (B.I.A. July 31, 2018), aff’g No. A 095 725 165
19 (Immig. Ct. N.Y. City Sept. 8, 2017). We assume the parties’
20 familiarity with the underlying facts and procedural history.
21 We have reviewed both the IJ’s and the BIA’s opinions
22 “for the sake of completeness.” Wangchuck v. Dep’t of
23 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
24 standards of review are well established. See 8 U.S.C.
25 § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
2
1 Cir. 2018); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013).
2 Credibility
3 The agency may, “[c]onsidering the totality of the
4 circumstances . . . base a credibility determination on the
5 demeanor, candor, or responsiveness of the applicant,” the
6 “inherent plausibility” of her account, and inconsistencies
7 in her statements or between her statements and other
8 evidence, without regard to whether they go “to the heart of
9 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
10 defer . . . to an IJ’s credibility determination unless . . .
11 it is plain that no reasonable fact-finder could make such an
12 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
13 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
14 at 76. Substantial evidence supports the agency’s
15 determination that Zhang was not credible.
16 First, the agency reasonably relied on an inconsistency
17 in Zhang’s testimony regarding whether she had ever possessed
18 documentation of her encounters with the police in China.
19 She testified that she had been issued documents related to
20 her interactions with the police in China and lost them when
21 she lost her cell phone, but later testified that she did not
22 ever have those documents, and that she only had pictures of
3
1 church gatherings. The agency was not required to accept her
2 explanation that she misunderstood the initial question. See
3 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
4 petitioner must do more than offer a plausible explanation
5 for his inconsistent statements to secure relief; he must
6 demonstrate that a reasonable fact-finder would be compelled
7 to credit his testimony.” (internal quotation marks omitted)
8 (quoting Zhang v. U.S. I.N.S., 386 F.3d 66, 76 (2d Cir.
9 2004))).
10 Second, the agency reasonably found implausible Zhang’s
11 testimony that she did not know the name of any of her former
12 pastors. We defer to the agency’s implausibility findings
13 so long as they are “tethered to record evidence, and there
14 is nothing else in the record from which a firm conviction of
15 error could properly be derived.” Wensheng Yan v. Mukasey,
16 509 F.3d 63, 67 (2d Cir. 2007). The agency reasonably found
17 Zhang’s explanation that many of her former pastors were
18 elderly or deceased unsatisfactory. Even crediting her
19 earlier statement that members of her community did not refer
20 to elderly people by their names out of respect, she claimed
21 only that “many” of the pastors were elderly, she did not
22 offer the title that she referred to the pastors by when asked
4
1 for a name, and the fact that some of her pastors are now
2 deceased does not explain why she would not know their names,
3 especially given the role that that the church allegedly
4 played in her life. Certified Administrative Record (“CAR”)
5 at 121.
6 Third, the agency made a negative demeanor finding,
7 describing Zhang as “nervous” when questioned about issues
8 beyond the scope of her written statement. CAR at 63.
9 Nervousness does not necessarily imply untruthfulness, but
10 the appearance that testimony is memorized or scripted does
11 undermine credibility. Cf. Shu Wen Sun v. BIA, 510 F.3d 377,
12 381 (2d Cir. 2007) (deferring to IJ’s finding that “petitioner
13 was evasive and non-responsive in a manner that suggested
14 untruthfulness, rather than nervousness or difficulty
15 comprehending the proceedings”); see also Majidi, 430 F.3d at
16 81 n.1 (affording particular deference to demeanor finding
17 because IJ “is in the best position to discern, often at a
18 glance, . . . whether a witness who hesitated in a response
19 was nevertheless attempting truthfully to recount what he
20 recalled of key events or struggling to remember the lines of
21 a carefully crafted ‘script’” (quoting Zhang, 386 F.3d at
22 73)). As noted above, Zhang testified inconsistently
5
1 regarding the nature of the evidence she allegedly lost with
2 her cell phone and could not name any of her former pastors—
3 both of which were issues that she had not addressed in her
4 written statement.
5 Finally, the agency reasonably concluded that the absence
6 of reliable corroborating evidence further undermined Zhang’s
7 credibility. An asylum applicant’s failure to corroborate
8 her testimony may bear on her credibility “because the absence
9 of corroboration in general makes an applicant unable to
10 rehabilitate testimony that has already been called into
11 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
12 2007). Zhang did not present any contemporaneous
13 documentation of her church attendance in China or her
14 encounters with the police. The letters from her churches
15 in China and the United States corroborated her religious
16 practice, but not her claims of past persecution. The only
17 evidence corroborating Zhang’s claims of past abuse was
18 letters from her friends and family, which the agency
19 reasonably accorded little weight because they were authored
20 by interested witnesses unavailable for cross-examination.
21 See In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A.
22 2010) (finding that unsworn letters from the applicant’s
6
1 friends and family did not provide substantial support for
2 the applicant’s claims because they were from interested
3 witnesses not subject to cross-examination), overruled on
4 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–
5 38 (2d Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324, 334
6 (2d Cir. 2013) (deferring to agency’s decision to give little
7 weight to letter from applicant’s spouse in China).
8 Accordingly, given the inconsistency, implausibility,
9 and demeanor findings, and the absence of reliable
10 corroborating evidence, the agency’s adverse credibility
11 determination is supported by substantial evidence. See 8
12 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
13 Future Persecution
14 Absent past persecution, an applicant may prevail on an
15 asylum claim by demonstrating that she subjectively fears
16 future persecution and that this fear is objectively
17 reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
18 Cir. 2004). An applicant can show that a fear is objectively
19 reasonable by establishing either a “reasonable possibility
20 . . . she would be singled out individually for persecution,”
21 or a “pattern or practice” of persecution of “persons
22 similarly situated” to her. 8 C.F.R.
7
1 § 1208.13(b)(2)(iii)(A); see also Y.C., 741 F.3d at 332; In
2 re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005) (defining a
3 pattern or practice of persecution as the “systemic or
4 pervasive” persecution of a group). Where the claim is based
5 on activities undertaken after the applicant’s arrival in the
6 United States, this requires “some showing that authorities
7 in [her] country of nationality are (1) aware of [her]
8 activities or (2) likely to become aware of [her] activities.”
9 Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).
10 A “fear may be well-founded even if there is only a slight,
11 though discernible, chance of persecution.” Diallo v. INS,
12 232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza-
13 Fonseca, 480 U.S. 421, 431 (1987)). But a fear is not
14 objectively reasonable if it lacks “solid support” in the
15 record and is merely “speculative at best.” Jian Xing Huang
16 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).
17 Although the agency credited Zhang’s claim that she
18 practices Christianity in the United States, it reasonably
19 concluded that she did not have an objectively reasonable
20 fear of future persecution on that basis. Zhang did not
21 claim that the Chinese government was aware of her religious
22 practice in the United States and, other than the testimony
8
1 that the agency found not credible and the letters to which
2 the agency reasonably assigned minimal weight, Zhang’s claim
3 that the Chinese government knew or would learn of her
4 religious practice in China was based only on country-
5 conditions evidence regarding the treatment of Christians.
6 Accordingly, her argument is that she will attend an
7 underground church in China, that there is a reasonable
8 possibility that the Chinese government will learn of that
9 attendance and persecute her as a result, and that she
10 established that possibility by showing a pattern or practice
11 of persecution of similarly situated Christians. See
12 Hongsheng Leng, 528 F.3d at 142–43.
13 Zhang argues that she satisfied her burden to demonstrate
14 an objectively reasonable fear of future persecution, but she
15 does not identify any evidence in the record that supports
16 this claim, and the agency reasonably concluded that she
17 failed to make that showing. First, as the BIA emphasized,
18 Zhang failed to provide any evidence of the persecution of
19 similarly situated individuals. Moreover, as the IJ found,
20 the record reflects that there are an estimated 68 million
21 Protestants in China, only 23 million of whom are affiliated
22 with a government-sanctioned church. See CAR at 242 (U.S.
9
1 State Dept. 2015 Int’l Religious Freedom Rep.). While the
2 agency did not discuss all the evidence in the record, it
3 gave “reasoned consideration to the petition, and made
4 adequate findings,” and it did not need to “expressly parse
5 or refute on the record each individual argument or piece of
6 evidence offered by the petitioner.” Zhi Yun Gao v. Mukasey,
7 508 F.3d 86, 87 (2d Cir. 2007) (internal quotation marks
8 omitted) (quoting Wang v. Bd. of Immigration Appeals, 437
9 F.3d 270, 275 (2d Cir. 2006)). A review of the record shows
10 that there is significant regional variation in the treatment
11 of members of unsanctioned religious groups in China, and
12 does not establish a pattern or practice of persecution of
13 underground church members in Zhang’s native Fujian Province.
14 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 149, 169–70 (2d
15 Cir. 2008) (finding no error in the agency’s requirement that
16 an applicant demonstrate a well-founded fear of persecution
17 specific to Fujian Province when persecutory acts in China
18 vary according to province).
19 In sum, Zhang did not meet her burden for asylum because
20 she did not present credible evidence that she suffered past
21 harm or was at risk of being singled out for future harm, and
22 she did not establish that there is a pattern or practice of
10
1 persecuting Christians who attend underground churches in
2 China. See 8 U.S.C. § 1158(b)(1)(B); 8 C.F.R.
3 § 1208.13(b)(1), (2). Because Zhang failed to meet her
4 burden for asylum, she “necessarily” failed to meet the higher
5 standards for withholding of removal and CAT relief. See
6 Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010). 1
7 For the foregoing reasons, the petition for review is
8 DENIED. All pending motions and applications are DENIED and
9 stays VACATED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe,
12 Clerk of Court
1 Because these findings are dispositive, we do not reach the agency’s
alternative findings that Zhang did not satisfy her burden of proof
because she failed to present reasonably available corroborating
evidence of her past harm and that she waived her CAT claim.
11