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