Zhou v. Garland ( 2021 )

19-2135
Zhou v. Garland
BIA
Bain, IJ
A205 874 315
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 21st day of December, two thousand twenty-
5 one.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 MICHAEL H. PARK,
11 Circuit Judges.
12 _____________________________________
13
14 LONG ZHOU,
15 Petitioner,
16
17 v. 19-2135
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Richard Tarzia, Esq., Belle Mead,
25 NJ.
26
27
1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
2 General; Carl McIntyre, Assistant
3 Director; Andrew Oliveira, Trial
4 Attorney, Office of Immigration
5 Litigation, United States
6 Department of Justice, Washington,
7 DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Long Zhou, a native and citizen of China,
13 seeks review of a June 18, 2019, decision of the BIA affirming
14 an October 2, 2017, decision of an Immigration Judge (“IJ”)
15 denying asylum, withholding of removal, and protection under
16 the Convention Against Torture (“CAT”). In re Long Zhou, No.
17 A 205 874 315 (B.I.A. June 18, 2019), aff’g No. A 205 874 315
18 (Immig. Ct. N.Y. City Oct. 2, 2017). We assume the parties’
19 familiarity with the underlying facts and procedural history.
20 We have considered both the IJ’s and the BIA’s opinions
21 “for the sake of completeness.” Wangchuck v. Dep’t of
22 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The
23 record supports the agency’s finding that Zhou’s testimony,
24 in the absence of corroboration, was insufficient to satisfy
25 his burden of proof.
2
1 The applicant has the burden of proof to establish
2 eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i).
3 The testimony of the applicant may be sufficient to
4 sustain the applicant’s burden without
5 corroboration, but only if the applicant satisfies
6 the trier of fact that the applicant’s testimony is
7 credible, is persuasive, and refers to specific
8 facts sufficient to demonstrate that the applicant
9 is a refugee. In determining whether the applicant
10 has met the applicant’s burden, the trier of fact
11 may weigh the credible testimony along with other
12 evidence of record. Where the trier of fact
13 determines that the applicant should provide
14 evidence that corroborates otherwise credible
15 testimony, such evidence must be provided unless the
16 applicant does not have the evidence and cannot
17 reasonably obtain the evidence.
18
19 Id. § 1158(b)(1)(B)(ii). “An applicant’s failure to
20 corroborate his . . . testimony may bear on credibility,
21 because the absence of corroboration in general makes an
22 applicant unable to rehabilitate testimony that has already
23 been called into question.” Biao Yang v. Gonzales, 496 F.3d
24 268, 273 (2d Cir. 2007). And “a failure to corroborate can
25 suffice, without more, to support a finding that an alien has
26 not met his burden of proof.” Chuilu Liu v. Holder, 575 F.3d
27 193, 198 n.5 (2d Cir. 2009); see also Wei Sun v. Sessions,
28 883 F.3d 23, 28 (2d Cir. 2018). The agency reasonably
3
1 concluded that Zhou failed to meet his burden of proof
2 considering his testimony and the absence of corroboration.
3 First, the IJ reasonably concluded that Zhou’s claim was
4 implausible. See 8 U.S.C. § 1158(b)(1)(B)(iii) (“a trier of
5 fact may base a credibility determination on . . . the
6 inherent plausibility of the applicant’s account”). “[T]he
7 administrative findings of fact are conclusive unless any
8 reasonable adjudicator would be compelled to conclude to the
9 contrary.” 8 U.S.C. § 1252(b)(4)(B); see Hong Fei Gao, 891
10 F.3d at 76. An IJ is not required to “explain in precise
11 detail what made each identified act implausible.” Wensheng
12 Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). And while
13 “bald” speculation is an impermissible basis for an adverse
14 credibility finding, “[t]he speculation that inheres in
15 inference is not ‘bald’ if the inference is made available to
16 the factfinder by record facts, or even a single fact, viewed
17 in the light of common sense and ordinary experience.” Siewe
18 v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007).
19 Accordingly, so long as an IJ’s finding is “tethered to record
20 evidence, and there is nothing else in the record from which
21 a firm conviction of error could properly be derived,” we
4
1 will not disturb an implausibility finding. Wensheng Yan,
2 509 F.3d at 67.
3 The IJ’s conclusion is tethered to the record: Zhou
4 testified that he first heard about Christianity, attended a
5 church, and was arrested all on the same day, and despite
6 only having attended church briefly and being detained for a
7 month, returned to the church one or two days after his
8 release. This lack of demonstrated attachment to the church
9 provides a basis for the IJ’s finding of implausibility, as
10 do Zhou’s vague statements about his faith. See Siewe, 480
11 F.3d at 168-69 (recognizing that IJ may draw reasonable
12 inferences when “made available to the factfinder by record
13 facts . . . viewed in the light of common sense and ordinary
14 experience”).
15 The agency also reasonably concluded that, in the absence
16 of “credible” and “persuasive” testimony, Zhou failed to meet
17 his burden of proof because he presented no corroborating
18 evidence. 8 U.S.C. § 1158(b)(1)(B)(ii). Where the IJ relies
19 “upon an alien’s failure to provide corroborating evidence in
20 concluding that the alien failed to meet his burden of proof,”
21 the IJ must “point to specific pieces of missing, relevant
5
1 documentation and show that this documentation was reasonably
2 available,” then the applicant must have an opportunity to
3 explain. Chuilu Liu, 575 F.3d 197–98. The IJ identified
4 missing evidence: Zhou did not provide letters from friends
5 or family members in China, from friends in the United States,
6 or from the church he attends in the United States. Zhou had
7 an opportunity to explain the lack of corroboration at his
8 hearing, but his primary explanation was that he did not ask
9 for corroborating evidence, not that it was unavailable.
10 Accordingly, given the implausibility finding and the
11 absence of any corroboration of events in China or church
12 attendance in the United States, the agency reasonably
13 concluded that Zhou failed to meet his burden of proof. See
14 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is dispositive
15 of asylum, withholding of removal, and CAT relief because all
16 three forms of relief were based on the same factual
17 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
18 Cir. 2006).
19
6
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7