Zhu He v. Holder ( 2012 )

11-4243 BIA
He v. Holder A087 467 417
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 20th day of September, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 SUSAN L. CARNEY,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 ZHU HE, AKA JIAN ZHENG HE,
15 Petitioner,
16
17 v. 11-4243
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Feng Li, Moslemi and Associates,
25 Inc., New York, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Linda S. Wernery,
29 Assistant Director; Gregory M.
30 Kelch, Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Zhu He, a native and citizen of the People’s Republic
10 of China, seeks review of a September 23, 2011, decision of
11 the BIA affirming the May 25, 2010, decision of an
12 Immigration Judge (“IJ”), which denied his application for
13 asylum, withholding of removal and relief under the
14 Convention Against Torture (“CAT”). In re Zhu He, No. A087
15 467 417 (B.I.A. Sept. 23, 2011), aff’g No. A087 467 417
16 (Immig. Ct. N.Y. City May 25, 2010). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 Under the circumstances of this case, we have reviewed
20 both the BIA’s and the IJ’s decisions, including the
21 portions of the IJ’s decision not explicitly discussed by
22 the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
23 Cir. 2005) (per curiam). The applicable standards of review
24 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
25 also Xiu Xia Liu v. Mukasey, 534 F.3d 162, 167 (2d Cir.
26 2008) (per curiam).
2
1 For asylum applications, such as He’s, governed by the
2 amendments made to the Immigration and Nationality Act by
3 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 as well as any inconsistencies between the applicant’s
7 statements and other record evidence, without regard to
8 whether the inconsistencies go “to the heart of the
9 applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
10 Xia Lin, 534 F.3d at 167.
11 The IJ found that He appeared uncomfortable and “looked
12 up” when asked questions that diverged from his prepared
13 statement, but He claims that he was merely searching his
14 memory. However, He’s explanation for his questionable
15 demeanor “misapprehends the degree of deference we must
16 afford to the IJ’s credibility findings” because a
17 petitioner “must do more than offer a plausible explanation
18 ... to secure relief; he must demonstrate that a reasonable
19 fact-finder would be compelled to credit his testimony.”
20 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (emphasis
21 and internal quotation marks omitted); see also Li Zu Guan
22 v. INS, 453 F.3d 129, 139-40 (2d Cir. 2006) (noting that
3
1 particular deference is given to the trier of fact’s
2 assessment of demeanor because demeanor is “paradigmatically
3 the sort of evidence that a fact-finder is best positioned
4 to evaluate”).
5 He also claims that the agency’s inconsistency findings
6 were not supported by substantial evidence because they were
7 too “minor and equivocal,” and the agency failed to consider
8 his plausible explanations for the inconsistencies between
9 his testimony and his mother’s letter. However,“an IJ may
10 rely on any inconsistency or omission in making an adverse
11 credibility determination as long as the totality of the
12 circumstances establishes that an asylum applicant is not
13 credible.” Xiu Xia Lin, 534 F.3d at 167 (emphasis in
14 original) (internal quotation marks omitted). Moreover, the
15 agency reasonably declined to credit He’s explanation that
16 the inconsistencies were due to a translation error because
17 the new translation of his mother’s letter was still
18 inconsistent with his testimony. See Majidi, 430 F.3d at19 80-81 (the agency need not credit an applicant’s
20 explanations for inconsistent testimony unless those
21 explanations would compel a reasonable fact-finder to do
22 so).
4
1 The agency’s adverse credibility determination was
2 further supported by He’s failure to corroborate his claim.
3 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
4 (per curiam) (explaining that an applicant’s corroborating
5 evidence may rehabilitate otherwise questionable testimony).
6 Because He’s testimony was not otherwise credible, the
7 agency properly relied on the lack of corroborative
8 evidence, including medical records and employment
9 verification, in finding that He failed to rehabilitate his
10 testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
11 F.3d 315, 341 (2d Cir. 2006) (concluding that the agency was
12 not required to identify and determine whether corroborative
13 evidence is reasonably available when the applicant was not
14 otherwise credible). Moreover, He’s claim that the
15 corroborative evidence identified by the agency was not
16 reasonably available is belied by his own testimony that he
17 failed to submit it because he did not think to request it.
18 Accordingly, because the totality of the circumstances
19 supports the agency’s adverse credibility determination, we
20 defer to that finding. See 8 U.S.C. § 1158(b)(1)(B)(iii);
21 Xiu Xia Lin, 534 F.3d at 167. As the only evidence of a
22 threat to He’s life or freedom depended upon his
23 credibility, the adverse credibility determination in this
5
1 case necessarily precludes success on his claims for asylum
2 and withholding of removal. See Paul v. Gonzales, 444 F.3d
3 148, 156 (2d Cir. 2006). Finally, He has waived his CAT
4 claim.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
6