Hui Zhang v. Holder ( 2010 )

09-4051-ag
Zhang v. Holder
BIA
Abrams, IJ
A098 632 728
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 25 th day of May, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 HUI ZHANG,
14 Petitioner,
15
16 v. 09-4051-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Sheema Chaudhry, Law Offices of
24 Michael Brown, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Linda S. Wernery, Assistant
28 Director; Thankful T. Vanderstar,
29 Trial 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 Hui Zhang, a native and citizen of the People’s
10 Republic of China, seeks review of an August 31, 2009, order
11 of the BIA, affirming the December 19, 2007, decision of
12 Immigration Judge (“IJ”) Steven R. Abrams, which denied her
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture. In re Hui Zhang, No.
15 A098 632 728 (B.I.A. Aug. 31, 2009), aff’g No. A098 632 728
16 (Immig. Ct. N.Y. City Dec. 19, 2007). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we review the
20 IJ’s decision including the portions not explicitly
21 discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432
22 F.3d 391, 394 (2d Cir. 2005). “We review the agency's
23 factual findings, including adverse credibility
24 determinations, under the substantial evidence standard,
2
1 treating them as ‘conclusive unless any reasonable
2 adjudicator would be compelled to conclude to the
3 contrary.’” Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.
4 2007), quoting 8 U.S.C. § 1252(b)(4)(B). For applications
5 governed by the REAL ID Act of 2005, the agency may,
6 considering the totality of the circumstances, base a
7 credibility finding on an asylum applicant’s demeanor, the
8 plausibility of his or her account, and inconsistencies in
9 his or her statements, regardless of whether they go “to the
10 heart of the applicant’s claim.” 8 U.S.C.
11 § 1158(b)(1)(B)(iii); see also Matter of J-Y-C-, 24 I. & N.
12 Dec. 260, 265 (BIA 2007). We “defer . . . to an IJ's
13 credibility determination unless, from the totality of the
14 circumstances, it is plain that no reasonable fact-finder
15 could make such an adverse credibility ruling.” Xiu Xia Lin
16 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
17 Analyzed under the REAL ID Act, the agency’s adverse
18 credibility determination is supported by substantial
19 evidence. In finding Zhang’s testimony not credible, the IJ
20 relied in part on her demeanor, noting that she was hesitant
21 and, at times, unresponsive. Because the IJ was in the best
22 position to observe Zhang’s manner while testifying, we
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1 afford his demeanor finding particular deference. See Zhou
2 Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004).
3 Indeed, while the record cannot reflect whether Zhang’s
4 testimony was generally hesitant, it reveals at least one
5 instance when Zhang did not respond to a question posed to
6 her, and other instances when her answers were unresponsive.
7 In finding Zhang not credible, the IJ also reasonably
8 relied on a number of inconsistencies in her testimony. See
9 Xiu Xia Lin, 534 F.3d at 167. For example, although Zhang
10 testified that she practiced Falun Gong exclusively at the
11 home of her friend, she had previously testified that she
12 practiced at her own house, and later stated that she also
13 practiced in an “empty room” located “in the mountain,” and
14 also “at the park.” When confronted with this
15 inconsistency, she did not respond. Moreover, although
16 Zhang initially testified that she learned about Falun Gong
17 in January 1999, but did not begin practicing until January
18 2000, she later testified that she began practicing Falun
19 Gong in January 1999, and that her father observed her
20 practicing Falun Gong in April 1999. Zhang also
21 contradicted herself as to whether she stopped practicing
22 Falun Gong after her alleged arrest in June 2000, initially
4
1 stating that she “did not give up practicing” after her
2 release, but later stating that she was unable to continue
3 practicing without her books. Finally, although Zhang
4 initially testified that no one saw her practice Falun Gong
5 in the United States because she practiced alone, she then
6 testified that she practiced together with a “close friend,”
7 who helped her photograph her exercises.
8 Zhang does not attempt to reconcile her testimony, and
9 instead argues that the inconsistencies are minor “under the
10 totality of the circumstances.” As Zhang acknowledges,
11 however, even minor inconsistencies may form the basis of an
12 adverse credibility determination under the REAL ID Act.
13 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534
14 F.3d at 167. Moreover, such inconsistencies make us “still
15 more confident in our review of [the IJ’s] observations
16 about an applicant’s demeanor.” Li Hua Lin v. U.S. Dep’t of
17 Justice, 453 F.3d 99, 109 (2d Cir. 2006). Because these
18 findings are sufficient to persuade us that the agency’s
19 adverse credibility determination was not in error, see Xiu
20 Xia Lin, 534 F.3d at 167, we need not reach the balance of
21 the IJ’s credibility findings. See Xiao Ji Chen v. U.S.
22 Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006).
23 Insofar as Zhang’s application for asylum, withholding
5
1 of removal, and CAT relief shared the same factual
2 predicate, the agency’s adverse credibility determination
3 was fatal to each of those claims. See Paul v. Gonzales,
4 444 F.3d 148, 156 (2d Cir. 2006) (withholding of removal);
5 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523
6 (2d Cir. 2006) (CAT).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
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