Jian Yun Zhou v. Holder , 397 F. App'x 730 ( 2010 )

05-3389-ag
Zhou v. Holder
BIA
Schoppert, IJ
A97 129 267
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 27th day of October, two thousand ten.
5
6 PRESENT:
7 CHESTER J. STRAUB,
8 ROSEMARY S. POOLER,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 _______________________________________
12
13 JIAN YUN ZHOU,
14 Petitioner,
15
16 v. 05-3389-ag
17 NAC
18 ERIC H. HOLDER,1 UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder is automatically substituted for former
Attorney General Alberto R. Gonzales as the respondent in this case.
1 FOR PETITIONER: Lin Li, Law Office of Fengling Liu,
2 New York, New York.
3
4 FOR RESPONDENT: Eric F. Melgren, United States
5 Attorney, Brent I. Anderson,
6 Assistant United States Attorney,
7 District of Kansas, Wichita, Kansas.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (“BIA”), it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
12 review is DENIED.
13 Jian Yun Zhou, a native and citizen of the People’s
14 Republic of China, seeks review of a June 3, 2005, order of
15 the BIA affirming the March 3, 2004, decision of Immigration
16 Judge (“IJ”) Douglas Schoppert, denying her applications for
17 asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”). In re Jian Yun Zhou,
19 No. A97 129 267 (B.I.A. Jun. 3, 2005), aff’g No. A97 129 267
20 (Immig. Ct. N.Y. City Mar. 3, 2004). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 of the case.
23 As an initial matter, Zhou has failed to raise her
24 claim for relief under the CAT in her brief to this Court.
25 Because issues not sufficiently argued in the briefs are
26 considered waived and normally will not be addressed on
27 appeal, we deem her CAT claim abandoned. See Yueqing Zhang
28 v. Gonzales, 426 F.3d 540, 546 n.7 (2d Cir. 2005). When the
2
1 BIA summarily affirms the decision of the IJ without issuing
2 an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s
3 decision as the final agency determination. See, e.g., Twum
4 v. INS, 411 F.3d 54, 59 (2d Cir. 2005); Yu Sheng Zhang v.
5 U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir. 2004). We
6 review the agency’s factual findings under the substantial
7 evidence standard, treating them as “conclusive unless any
8 reasonable adjudicator would be compelled to conclude to the
9 contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun
10 Zhang v. INS, 386 F.3d 66, 73 & n.7 (2d Cir. 2004).
11 However, we will vacate and remand for new findings if the
12 agency’s reasoning or its fact-finding process was
13 sufficiently flawed. See Cao He Lin v. U.S. Dep’t of
14 Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v.
15 INS, 359 F.3d 121, 129 (2d Cir. 2004); see also Xiao Ji Chen
16 v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006)
17 (agreeing with this principle, but avoiding remand, in spite
18 of deficiencies in an adverse credibility determination,
19 because it could be confidently predicted that the IJ would
20 adhere to the decision were the case remanded). We review
21 de novo questions of law, including what quantum of evidence
22 will suffice to discharge an applicant’s burden of proof.
23 See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.
24 2003).
3
1 The IJ’s finding that Zhou was not credible is
2 supported by substantial evidence because he properly relied
3 on a material discrepancy in the record, finding that Zhou’s
4 testimony asserting that the government discovered Christian
5 materials in her room was inconsistent with her credible
6 fear interview statement, which omitted that assertion.
7 While Zhou denied having said that she had no problems in
8 China on account of her religion, and insisted that she told
9 the officer that “there are two reasons I would be arrested
10 and put in jail in China,” the IJ was not required to credit
11 Zhou’s explanation. See Majidi v. Gonzales, 430 F.3d 77,
12 80-81 (2d Cir. 2005).
13 Moreover, this inconsistency goes to the heart of
14 Zhou’s claim for asylum. See Secaida-Rosales, 331 F.3d at15 308-09. Zhou’s claimed fear of persecution based on her
16 Christianity was not independent of her claim based on her
17 opposition to the family planning policy; rather, it was
18 part of the same factual predicate. She asserted that her
19 Christian religion exacerbated the Chinese government’s
20 desire to punish her because it suggested her motive for
21 contravening government policy. When measured against the
22 record as a whole, this was a “substantial” inconsistency
23 which resulted in the omission of essentially half of Zhou’s
24 claim. Cf. Secaida-Rosales, 331 F.3d at 308-09 (finding
4
1 that a petitioner’s omission of the detail that he was shot
2 at was not substantial when viewed in light of his overall
3 claim for asylum, which was based on a series of events and
4 which spanned several years).
5 Nor are we concerned that the IJ placed undue reliance
6 on the credible fear interview statement. Where a
7 discrepancy arises between an applicant’s testimony and her
8 statement at an administrative interview, we will closely
9 examine the interview to ensure that it represents a
10 “sufficiently accurate record” of the applicant’s statements
11 to merit consideration in determining whether the applicant
12 is credible. Ming Zhang v. Holder, 585 F.3d 715, 722-25 (2d
13 Cir. 2009). The credible fear interview was conducted
14 through a Mandarin interpreter, and Zhou’s statement is
15 provided in a verbatim account. Moreover, her detailed
16 answers about her claimed fear of persecution indicate that
17 she was not reluctant to provide details about her asylum
18 claim. See id. Thus, the IJ’s reliance on Zhou’s credible
19 fear statement was proper.
20 While the IJ’s decision contained numerous errors, we
21 nevertheless uphold his adverse credibility determination,
22 as the inconsistency he identified was “significant” and
23 related to “material aspects” of Zhou’s claim. Remand is
24 not required here because we can confidently predict that
5
1 the agency would adhere to its prior decision absent those
2 errors. See Xiao Ji Chen, 471 F.3d at 338-39. Therefore,
3 we affirm the IJ’s denial of relief.
4 Because the IJ’s adverse credibility finding is
5 supported by substantial evidence, we do not review the IJ’s
6 alternate findings. Similarly, because the only evidence of
7 a threat to Zhou’s life or freedom depended upon her
8 credibility, the adverse credibility determination in this
9 case necessarily precludes success on her claim for
10 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
11 156 (2d Cir. 2006); Wu Biao Chen v. INS, 344 F.3d 272, 275
12 (2d Cir. 2003).
13 For the foregoing reasons, the petition for review is
14 DENIED. Having completed our review, the pending motion for
15 a stay of removal in this petition is DISMISSED as moot.
16
17 FOR THE COURT:
18 Catherine O'Hagan Wolfe, Clerk
19
20
6