Hailan Zheng v. Sessions , 693 F. App'x 74 ( 2017 )

16-2785
Zheng v. Sessions
BIA
Zagzoug, IJ
A200 165 363
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
26th day of July, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
JOHN M. WALKER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
HAILAN ZHENG,
Petitioner,
v. 16-2785
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Hailan Zheng, Flushing, New York.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General Civil Division;
Douglas E. Ginsburg, Assistant
Director; Jane T. Schaffner, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Hailan Zheng, a native and citizen of the
People’s Republic of China, seeks review of a July 12, 2016,
decision of the BIA affirming an April 13, 2015, decision of
an Immigration Judge (“IJ”) denying Zheng’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Hailan Zheng, No. A200 165 363
(B.I.A. July 12, 2016), aff’g No. A200 165 363 (Immig. Ct. N.Y.
City April 13, 2015). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
In lieu of filing a brief, the Government moves for summary
denial of Zheng’s petition for review. Zheng has filed her
merits brief. Summary denial is warranted only if a petition
is frivolous. Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995).
Although Zheng’s petition may not be frivolous, it lacks merit;
therefore, we treat the Government’s motion as a response to
Zheng’s brief and deny her petition.
I. Waiver and Exhaustion
The Government largely argues that Zheng has waived or
failed to exhaust challenges to dispositive rulings. We agree
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that Zheng has waived review of any challenge to the time bar
ruling, i.e., that Zheng failed to show that her asylum
application was filed within one year after she arrived in the
United States. 8 U.S.C. § 1158(a)(2)(B) (to qualify for
asylum, an alien must demonstrate “by clear and convincing
evidence” that her asylum application was “filed within 1 year
after the date of [her] arrival in the United States”); Ahmed
v. Holder, 624 F.3d 150, 153 (2d Cir. 2010) (“Issues not briefed
on appeal are considered abandoned.”).
However, we conclude that Zheng did sufficiently exhaust
challenges to the adverse credibility determination. See Gill
v. INS, 420 F.3d 82, 85-86 (2d Cir. 2005). Because that ruling
is dispositive of all relief—asylum, withholding of removal,
and CAT relief—we decline to further address the Government’s
exhaustion and waiver arguments.
II. Adverse Credibility Determination
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yun-Zui Guan
v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well established. 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
(2d Cir. 2008). The agency may, “[c]onsidering the totality
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of the circumstances,” base an adverse credibility
determination on discrepancies between an applicant’s oral and
written statements and between an applicant’s statements and
other record evidence, and “any other relevant factor.”
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
“We defer . . . to an IJ’s credibility determination unless
. . . it is plain that no reasonable fact-finder could make such
an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
Further, “[a] petitioner must do more than offer a plausible
explanation for [her] inconsistent statements to secure relief;
[s]he must demonstrate that a reasonable fact-finder would be
compelled to credit [her] testimony.” Majidi v. Gonzales, 430
F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and
citation omitted). Substantial evidence supports the agency’s
adverse credibility ruling.
Zheng relied on a letter from her friend Zheng Shunzi
(“Shunzi”) to corroborate events in China. Zheng’s testimony,
however, conflicted with this letter in three primary ways and
exposed her lack of familiarity with the document. First,
Shunzi wrote that Zheng was arrested for spreading the gospel
and that she (Shunzi) was also detained, using “we” and “us”
to describe their release from prison. But Zheng testified
that they were not arrested together because she (Zheng) “was
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arrested alone at [her] house.” When confronted with this
discrepancy, Zheng maintained that they were not arrested
together and that Shunzi used “us” and “we” “because [they] went
to the same church and did the same church activities together.”
Second, Shunzi wrote that Zheng attended church services and
spread the gospel, and that spreading the gospel led to Zheng’s
arrest. But when asked whether “the only thing [she] did for
the church was go to church on Sunday,” Zheng replied
affirmatively, without mentioning spreading the gospel until
later when she replied affirmatively to a question explicitly
asking if she had also “spread the gospel” and “distribute[d]
fliers to people.” Third, Shunzi wrote that Zheng’s family
church was destroyed after Zheng left China. But when asked
about her church, Zheng was unaware that it had been destroyed
or that Shunzi had reported that information in her letter,
offering only that she did not recall the details of Shunzi’s
letter and did not know that her church was destroyed because
she “lost contact.”
These inconsistencies—particularly whether Zheng and
Shunzi were arrested together and whether Zheng spread the
gospel, which Shunzi connects to Zheng’s arrest—are material
because they concern the “very persecution from which [Zheng]
sought asylum” and, even alone, stand as proper grounds for the
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agency’s adverse credibility determination. Xian Tuan Ye v.
Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006). Zheng
attempted to explain her inconsistencies and argues that the
agency misconstrued the evidence. However, no reasonable
fact-finder would be compelled to credit her explanations,
which reflected a lack of familiarity with her own evidence.
Majidi, 430 F.3d at 80-81. And even if the evidence could be
construed in Zheng’s favor, the agency was not required to
construe it in that way. Siewe v. Gonzales, 480 F.3d 160, 168
(2d Cir. 2007) (“[R]ecord support for a contrary inference—even
on more plausible or natural—does not suggest error.”).
In addition to the fatal inconsistencies addressed above,
Zheng’s credibility was further impugned by the testimony of
her pastor. 8 U.S.C. § 1158(b)(1)(B)(ii); Xiu Xia Lin, 534
F.3d at 167. Zheng testified that she had attended church every
week since coming to the United States. However, her pastor
could not confirm that statement because “there were weeks she
wasn’t able to come to church,” although Zheng had recently been
attending consistently.
Because Zheng’s claim for relief depended on her
credibility, the adverse credibility determination is
dispositive of asylum, withholding of removal, and CAT relief.
Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2010).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Zheng’s motion for
a stay of removal and the Government’s motion for summary denial
are denied as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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