Qin Zhang v. Holder ( 2012 )

11-3253-ag
Zhang v. Holder
BIA
Balasquide, IJ
A088 794 103
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 29th day of May, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 QIN ZHANG,
14 Petitioner,
15
16 v. 11-3253-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Offices of Michael
24 Brown, New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; M. Jocelyn Lopez Wright,
28 Senior Litigation Counsel; Lori B.
29 Warlick, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Qin Zhang, a native and citizen of the People’s
6 Republic of China, seeks review of a July 26, 2011, decision
7 of the BIA affirming the March 11, 2010, decision of
8 Immigration Judge (“IJ”) Javier Balasquide, which denied his
9 application for asylum, withholding of removal and relief
10 under the Convention Against Torture (“CAT”). In re Qin
11 Zhang, No. A088 794 103 (B.I.A. July 26, 2011), aff’g No.
12 A088 794 103 (Immig. Ct. N.Y. City Mar. 11, 2010). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
20 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Zhang challenges
21 the agency’s denial of his application for asylum and
22 withholding of removal.
23
2
1 For asylum applications, such as Zhang’s, governed by
2 the amendments made to the Immigration and Nationality Act
3 by 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 the plausibility of his account, and inconsistencies in his
7 statements, without regard to whether they go “to the heart
8 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
9 see Xiu Xia Lin, 534 F.3d at 167. We “defer . . . to an
10 IJ’s credibility determination unless, from the totality of
11 the circumstances, it is plain that no reasonable fact-
12 finder could make” such a ruling. Xiu Xia Lin, 534 F.3d at
13 167.
14 Here, substantial evidence supports the IJ’s adverse
15 credibility determination given the material omissions in
16 Zhang’s asylum application. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii); Xian Tuan Ye v. Dep’t of Homeland
18 Security, 446 F.3d 289, 294-95 (2d Cir. 2006); Xiu Xia Lin,
19 534 F.3d at 166 n.3 (explaining that inconsistencies and
20 omissions are “functionally equivalent”). As the agency
21 observed, Zhang testified that the Chinese government
22 continued to search for him after he left China and issued a
23 summons to his mother, and that his practice of Falun Gong
3
1 is ongoing in the United States, but his asylum application
2 omitted this information. The agency reasonably declined to
3 credit Zhang’s vague and non-responsive explanations for
4 these omissions. See Majidi v. Gonzales, 430 F.3d 77, 80-81
5 (2d Cir. 2005) (determining that the agency need not credit
6 an applicant’s explanations for inconsistent testimony
7 unless those explanations would compel a reasonable fact-
8 finder to do so).
9 The adverse credibility determination is further
10 supported by Zhang’s failure to corroborate the portions of
11 his claim that he omitted from his asylum application. See
12 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). In
13 finding that Zhang failed to provide adequate corroboration,
14 the agency reasonably afforded little evidentiary weight to
15 the copy of a summons Zhang provided with his application
16 because it was not authenticated pursuant to the
17 regulations, 8 C.F.R. § 1287.6, and because it lacked a
18 proper foundation needed for authentication. See Qin Wen
19 Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007); Xiao Ji
20 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.
21 2006).
22 Accordingly, given the omissions and the lack of
23 corroborating evidence to rehabilitate Zhang’s testimony,
4
1 substantial evidence supports the agency’s adverse
2 credibility determination, and we defer to that finding.
3 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
4 167. Because the only evidence of a threat to Zhang’s life
5 or freedom depended upon his credibility, the adverse
6 credibility determination in this case necessarily precludes
7 success on his claims for asylum and withholding of removal.
8 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). We
9 decline to reach the agency’s alternate burden of proof
10 finding as the adverse credibility determination is
11 dispositive.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
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