Baozhu Zhang v. Lynch ( 2016 )

13-3177
Zhang v. Lynch
BIA
Zagzoug, IJ
A087 468 163
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 27th day of January, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 _____________________________________
13
14 BAOZHU ZHANG, AKA MEIHUA ZHANG,
15 Petitioner,
16
17 v. 13-3177
18 NAC
19 Loretta E. Lynch, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22
23 _____________________________________
24
25 FOR PETITIONER: Gang Zhou, New York, NY.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Lindsay B. Glauner, Senior
29 Litigation Counsel; Gregory M.
1 Kelch, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Baozhu Zhang, a native and citizen of the People’s
11 Republic of China, seeks review of a July 30, 2013, decision
12 of the BIA affirming the November 22, 2011, decision of an
13 Immigration Judge (“IJ”) denying her application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Baozhu Zhang, No. A087 468
16 163 (B.I.A. July 30, 2013), aff’g No. A087 468 163 (Immig.
17 Ct. N.Y. City Nov. 22, 2011). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as supplemented by the BIA. See Yan Chen
22 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
23 applicable standards of review are well established. See 8
24 U.S.C. § 1252(b)(4)(B); Weng v. Holder, 562 F.3d 510, 513
25 (2d Cir. 2009).
2
1 For asylum applications like Zhang’s, governed by the
2 REAL ID Act of 2005, the agency may, “[c]onsidering the
3 totality of the circumstances,” base a credibility finding
4 on an asylum applicant’s “demeanor, candor, or
5 responsiveness,” the plausibility of her account, and
6 inconsistencies in her statements, without regard to whether
7 they go “to the heart of the applicant’s claim,” so long as
8 they reasonably support an inference that the applicant is
9 not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu
10 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per
11 curiam). “An inconsistency and an omission are, for these
12 purposes, functionally equivalent.” Xiu Xia Lin, 534 F.3d
13 at 166 n.3. We defer “to an IJ’s credibility determination
14 unless, from the totality of the circumstances, it is plain
15 that no reasonable fact-finder could make such an adverse
16 credibility ruling.” Id. at 167. In this case, the agency
17 reasonably based its adverse credibility determination on
18 Zhang’s vague and non-responsive testimony, an omission
19 from, and an inconsistency in, her testimony, and her lack
20 of corroboration.
21 The basis for Zhang’s claimed fear of persecution was
22 that she had been a member of the Chinese Freedom Democratic
3
1 Party in the United States since August 2010, and had been
2 so active – attending party movements and publishing
3 articles on the party’s website – that a year later local
4 police from her village in China threatened her parents.
5 Zhang testified that she attended weekly Democracy Party
6 classes, had attended protests against the Chinese
7 government at least ten times, and on at least one occasion
8 had spoken at a protest. However, in response to direct
9 questions regarding what the protests were about, what the
10 participants said, and what she said in her remarks, Zhang
11 could not answer with particularity. See Rizal v. Gonzales,
12 442 F.3d 84, 90 (2d Cir. 2006) (there are “instances in
13 which the nature of an individual applicant’s account would
14 render his lack of a certain degree of doctrinal knowledge
15 suspect”).
16 In response to being asked the full official name of
17 the party of which she was a member, Zhang replied that it
18 was called “the Democracy Party,” whereas in her written
19 statement she stated that she was a member of the “Chinese
20 Freedom Democratic Party.” Additionally, Zhang could not
21 name any party officials other than “Chairman Ni.” When
22 asked why, Zhang explained that she could not read or write
4
1 in Chinese or English, and the statement she filed in
2 support of her claim, written in Chinese and signed by her,
3 was actually written by her husband, although she dictated
4 it to him.
5 Zhang submitted a “Certificate of Appointment,” signed
6 by Chairman Ni, stating that Zhang had been appointed as the
7 Woman Division Clerk for The Party of Freedom and Democracy
8 in China. However, Zhang did not mention this role when
9 testifying as to her activities in the party. The IJ
10 reasonably concluded that Zhang’s failure to mention that
11 she had an official appointment within the party was a
12 significant omission.
13 Moreover, the IJ reasonably concluded that the
14 testimony of Chairman Ni, although generally credible, did
15 not sufficiently rehabilitate Zhang’s claim because he did
16 not testify as to the contents of her speech at the
17 consulate or the articles she published on the party
18 website. The IJ also reasonably concluded that Zhang’s
19 husband’s failure to testify on her behalf further called
20 into doubt her claim because Chairman Ni testified that
21 Zhang’s husband wrote her articles (because she is
22 illiterate) and Zhang herself testified that she dictated
23 her statement regarding her asylum claim to her husband, and
5
1 he wrote it for her. See Biao Yang v. Gonzales, 496 F.3d
2 268, 273 (2d Cir. 2007)(“An applicant’s failure to
3 corroborate . . . testimony may bear on credibility, because
4 the absence of corroboration in general makes an applicant
5 unable to rehabilitate testimony that has already been
6 called into question.”).
7 Accordingly, the totality of the circumstances supports
8 the agency’s adverse credibility determination. See 8
9 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
10 Because the only evidence of a threat to Zhang’s life or
11 freedom depended upon her credibility, the finding
12 necessarily precludes success on Zhang’s claims for asylum,
13 withholding of removal, and CAT relief. See Paul v.
14 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
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22
23
6
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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