Zhi Wang v. Lynch , 644 F. App'x 85 ( 2016 )

15-342
Wang v. Lynch
BIA
Van Wyke, IJ
A087 783 619
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
25th day of March, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
ZHI WANG,
Petitioner,
v. 15-342
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; John S.
Hogan, Assistant Director; Matthew
A. Spurlock, 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.
Petitioner Zhi Wang, a native and citizen of China, seeks
review of a January 8, 2015, decision of the BIA affirming a
February 21, 2013, decision of an Immigration Judge (“IJ”)
denying Wang’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Zhi Wang, No. A087 783 619 (B.I.A. Jan. 8, 2015), aff’g No.
A087 783 619 (Immig. Ct. N.Y. City Feb. 21, 2013). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Given the circumstances of this case, we have considered
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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Under the REAL ID Act of 2005, the agency may, in light of
“the totality of the circumstances,” base an adverse
credibility determination on an asylum applicant’s “demeanor,
candor, or responsiveness,” the plausibility of his account,
and inconsistencies in his statements “without regard to
whether” those inconsistencies go “to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin
v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). Under the
“substantial evidence” standard of review, “[w]e 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 an adverse credibility ruling.” Xiu Xia Lin,
534 F.3d at 167.
The agency’s adverse credibility determination in this
case is supported by substantial evidence. First, the agency
properly relied on inconsistencies between Wang’s testimony and
his documentary evidence. Id. at 166-67. For example, a
letter from Wang’s father stated that in April 2006, Wang told
his parents “that he accepted the gospel spread by the Young
Men’s Christian Association and attended the family church.”
A.R. 384. By contrast, Wang testified that it was his aunt who
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introduced him to Christianity. When confronted with the
apparent inconsistency between these two accounts, Wang
responded that he initially felt that it was not “important”
to tell his parents that his aunt had converted him to
Christianity, but that he later told them the truth. Wang could
not explain why his father’s letter, written three years later,
would relate the earlier (erroneous) source of his Christian
conversion. Therefore, Wang has not carried his burden to
demonstrate that “a reasonable fact-finder would be compelled
to credit” his explanation for this inconsistency. Majidi v.
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (quoting Zhou Yun Zhang
v. I.N.S., 386 F.3d 66, 76 (2d Cir. 2003)).
In addition, Wang’s testimony that he was baptized in China
conflicted with a letter from a fellow parishioner of his U.S.
church, which stated that Wang was baptized at their church in
New York. When confronted with this inconsistency, Wang
responded, “I think the person made a mistake.” The agency was
not compelled to credit this explanation. Majidi, 430 F.3d at
80. In his brief, Wang now questions the value of the
parishioner’s letter, observing that it “appears as though it
followed a template” and focused on the parishioner instead of
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Wang. However, Wang did not offer this explanation at his
hearing, and “[a]n attorney’s unsworn statements in a brief are
not evidence.” Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.
2009). Even if Wang had so testified, the explanation only
undermined his own documentary evidence. Majidi, 430 F.3d at
80.
The IJ’s findings regarding Wang’s demeanor provide
further support for the adverse credibility determination.
Majidi, 430 F.3d at 81 n.1. The IJ pressed Wang to explain why,
if he refused to give up the names of his fellow congregants,
the police would have released him. In his oral decision, the
IJ observed that Wang’s response—that he had not thought about
the matter—was punctuated by “long pauses” and that he was
“stumbling over an answer.” A.R. 61. Given that he had “the
unique advantage among all officials involved in the process
of having heard directly from the applicant,” this finding
deserves deference. See Zhou Yun Zhang v. I.N.S., 386 F.3d 66,
73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang
Lin, 494 F.3d at 296.
This deference is particularly warranted because the
demeanor finding is linked to implausible testimony. Cf. Li
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Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)
(explaining that we can be “more confident in our review of
observations about an applicant’s demeanor where . . . they are
supported by specific examples of inconsistent testimony”).
“[I]n assessing the credibility of an asylum applicant’s
testimony, an IJ is entitled to consider whether the applicant’s
story is inherently implausible.” Wensheng Yan v. Mukasey, 509
F.3d 63, 66 (2d Cir. 2007). Here, the IJ properly found that
Wang’s assertion that he never thought about why the police
decided to release him after detaining him for 14 days,
interrogating him, and beating him was not plausible.
Finally, the IJ properly found that Wang omitted important
information from his asylum application. See Lin, 534 F.3d at
167 (holding that an IJ may base an adverse credibility
determination on “omissions” even if they are “collateral or
ancillary” to the applicant’s claims (quoting Secaida-Rosales
v. I.N.S., 331 F.3d 297, 308 (2d Cir. 2003)). For example, he
testified that his parents, aunt, cousin, and wife belong to
the same underground church that he does, but failed to mention
this fact in the section of his application that asked whether
his family members have ever been associated with a religious
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organization. Similarly, on his application, he failed to
answer questions regarding his role in the church, its
structure, and the extent of his family members’ involvement.
The IJ was entitled to consider these notable omissions in
finding Wang not credible.
Given the inconsistencies, omissions, and demeanor
problems that cast doubt on Wang’s claim, the totality of the
circumstances supports the adverse credibility determination.
Because asylum, withholding of removal, and CAT relief were all
based on the same factual predicate, the adverse credibility
determination is dispositive of all three. See Paul v.
Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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