Qin Zhang v. Holder

11-3253-ag Zhang v. Holder BIA Balasquide, IJ A088 794 103 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 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 29th day of May, two thousand twelve. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 REENA RAGGI, 9 DENNY CHIN, 10 Circuit Judges. 11 _______________________________________ 12 13 QIN ZHANG, 14 Petitioner, 15 16 v. 11-3253-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Lee Ratner, Law Offices of Michael 24 Brown, New York, N.Y. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; M. Jocelyn Lopez Wright, 28 Senior Litigation Counsel; Lori B. 29 Warlick, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 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 4 is DENIED. 5 Qin Zhang, a native and citizen of the People’s 6 Republic of China, seeks review of a July 26, 2011, decision 7 of the BIA affirming the March 11, 2010, decision of 8 Immigration Judge (“IJ”) Javier Balasquide, which denied his 9 application for asylum, withholding of removal and relief 10 under the Convention Against Torture (“CAT”). In re Qin 11 Zhang, No. A088 794 103 (B.I.A. July 26, 2011), aff’g No. 12 A088 794 103 (Immig. Ct. N.Y. City Mar. 11, 2010). 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 decision of the IJ as supplemented by the BIA. See Yan 17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 18 applicable standards of review are well-established. 19 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. 20 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Zhang challenges 21 the agency’s denial of his application for asylum and 22 withholding of removal. 23 2 1 For asylum applications, such as Zhang’s, governed by 2 the amendments made to the Immigration and Nationality Act 3 by the REAL ID Act of 2005, the agency may, considering the 4 totality of the circumstances, base a credibility finding on 5 an asylum applicant’s “demeanor, candor, or responsiveness,” 6 the plausibility of his account, and inconsistencies in his 7 statements, without regard to whether they go “to the heart 8 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); 9 see Xiu Xia Lin, 534 F.3d at 167. We “defer . . . to an 10 IJ’s credibility determination unless, from the totality of 11 the circumstances, it is plain that no reasonable fact- 12 finder could make” such a ruling. Xiu Xia Lin, 534 F.3d at 13 167. 14 Here, substantial evidence supports the IJ’s adverse 15 credibility determination given the material omissions in 16 Zhang’s asylum application. See 8 U.S.C. 17 § 1158(b)(1)(B)(iii); Xian Tuan Ye v. Dep’t of Homeland 18 Security, 446 F.3d 289, 294-95 (2d Cir. 2006); Xiu Xia Lin, 19 534 F.3d at 166 n.3 (explaining that inconsistencies and 20 omissions are “functionally equivalent”). As the agency 21 observed, Zhang testified that the Chinese government 22 continued to search for him after he left China and issued a 23 summons to his mother, and that his practice of Falun Gong 3 1 is ongoing in the United States, but his asylum application 2 omitted this information. The agency reasonably declined to 3 credit Zhang’s vague and non-responsive explanations for 4 these omissions. See Majidi v. Gonzales, 430 F.3d 77, 80-81 5 (2d Cir. 2005) (determining that the agency need not credit 6 an applicant’s explanations for inconsistent testimony 7 unless those explanations would compel a reasonable fact- 8 finder to do so). 9 The adverse credibility determination is further 10 supported by Zhang’s failure to corroborate the portions of 11 his claim that he omitted from his asylum application. See 12 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). In 13 finding that Zhang failed to provide adequate corroboration, 14 the agency reasonably afforded little evidentiary weight to 15 the copy of a summons Zhang provided with his application 16 because it was not authenticated pursuant to the 17 regulations, 8 C.F.R. § 1287.6, and because it lacked a 18 proper foundation needed for authentication. See Qin Wen 19 Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007); Xiao Ji 20 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 21 2006). 22 Accordingly, given the omissions and the lack of 23 corroborating evidence to rehabilitate Zhang’s testimony, 4 1 substantial evidence supports the agency’s adverse 2 credibility determination, and we defer to that finding. 3 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 4 167. Because the only evidence of a threat to Zhang’s life 5 or freedom depended upon his credibility, the adverse 6 credibility determination in this case necessarily precludes 7 success on his claims for asylum and withholding of removal. 8 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). We 9 decline to reach the agency’s alternate burden of proof 10 finding as the adverse credibility determination is 11 dispositive. 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 5