Yuhua Zhang v. Holder ( 2012 )

11-68-ag
Zhang v. Holder
BIA
Abrams, IJ
A088 777 150
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 19th day of April, two thousand twelve.
PRESENT:
RALPH K. WINTER,
JOSEPH M. McLAUGHLIN,
REENA RAGGI,
Circuit Judges.
YUHUA ZHANG,
Petitioner,
v. 11-68-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
FOR PETITIONER: Matthew J. Harris, Law Office of
Theodore M. Davis, Long Island City,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri Scadron, Assistant
Director; Kathryn L. DeAngelis,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Yuhua Zhang, a native and citizen of the People’s
Republic of China, seeks review of a December 22, 2010,
decision of the BIA affirming the January 28, 2009, decision
of Immigration Judge (“IJ”) Steven R. Abrams, which denied
her application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Yuhua Zhang, No. A088 777 150 (B.I.A. Dec. 22, 2010), aff’g
No. A088 777 150 (Immig. Ct. N.Y. City Jan. 28, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
For asylum applications governed by the amendments made
to the Immigration and Nationality Act by the REAL ID Act of
2005, the agency may, considering the totality of the
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circumstances, base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his or her account, and inconsistencies in
his or her statements, without regard to whether they go “to
the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008). We will defer “to an IJ’s
credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
In this case, the agency reasonably based its adverse
credibility determination on the inconsistencies between
Zhang’s testimony and her asylum application and
corroborating evidence, as well as Zhang’s evasive answers
to questions.
The agency identified numerous inconsistencies between
Zhang’s testimony and her supporting evidence, including how
long she had been pregnant when she was subjected to a
forced abortion, how it was discovered she was pregnant,
what occurred during the abortion procedure, when Zhang
returned to work after the abortion, whether she was
inserted with an intrauterine device after the abortion, and
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who paid the resulting fine. The agency also noted
significant inconsistencies between the testimony of Zhang’s
corroborating witness, Li Jin Ja, and Zhang’s testimony and
documentary evidence. In finding Zhang not credible, the
agency reasonably relied on these inconsistencies, and on
the cumulative effect of the inconsistencies to support the
adverse credibility finding. See 8 U.S.C. §
1158(b)(1)(B)(iii).
Indeed, “even where an IJ relies on discrepancies or
lacunae that, if taken separately, concern matters
collateral or ancillary to the claim, . . . the cumulative
effect may nevertheless be deemed consequential by the fact-
finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.
2006) (internal quotation marks omitted); see also Liang
Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.
2006). Moreover, the IJ provided Zhang with multiple
opportunities to reconcile or clarify her testimony and she
failed to present reasonable explanations for the
discrepancies. See Ming Shi Xue v. BIA, 439 F.3d 111, 125
(2d Cir. 2006); Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005). Thus, in this case, the totality of the
circumstances supports the agency’s adverse credibility
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determination, and we must defer to that finding. See
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
Moreover, because the only evidence of a threat to Zhang’s
life or freedom, or that she was likely to be tortured,
depended upon her credibility, the adverse credibility
determination in this case necessarily precludes success on
her claims for asylum, withholding of removal, and CAT
relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is 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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