Maohua Zhang v. Holder , 457 F. App'x 46 ( 2012 )

11-25-ag
Zhang v. Holder
BIA
Abrams, IJ
A088 349 364
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 27th day of January, two thousand twelve.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 MAOHUA ZHANG,
14 Petitioner,
15
16 v. 11-25-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Lee Ratner, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Thomas B. Fatouros, Senior
27 Litigation Counsel; Robert Michael
28 Stalzer, Trial Attorney, Office of
29 Immigration Litigation, Washington
30 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 Petitioner Maohua Zhang, a native and citizen of China,
6 seeks review of the December 22, 2010, decision of the BIA
7 affirming the October 20, 2008, decision of Immigration
8 Judge (“IJ”) Steven R. Abrams denying his application for
9 asylum, withholding of removal, and CAT relief. In re
10 Maohua Zhang, No. A088 349 364 (B.I.A. Dec. 22, 2010), aff’g
11 No. A088 349 364 (Immig. Ct. N.Y. City Oct. 20, 2008). We
12 assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 both the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales,
16 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
17 of review are well established. See 8 U.S.C.
18 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
19 162, 165-66 (2d Cir. 2008) (per curiam). We “defer . . . to
20 an IJ’s credibility determination unless, from the totality
21 of the circumstances, it is plain that no reasonable fact-
22 finder could make such an adverse credibility ruling.” Xiu
23 Xia Lin, 534 F.3d at 167. For asylum applications, like
2
1 Zhang’s, governed by the REAL ID Act, the agency may,
2 considering the totality of the circumstances, base a
3 credibility finding on an asylum applicant’s demeanor, the
4 plausibility of his account, and inconsistencies in his
5 statements, without regard to whether they go “to the heart
6 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
7 Xiu Xia Lin, 534 F.3d at 163-64.
8 Substantial evidence supports the agency’s
9 determination that Zhang did not testify credibly regarding
10 his claim that he faced persecution on account of his
11 violation of China’s family planning policy and his
12 involvement with Falun Gong. In finding Zhang not credible,
13 the agency reasonably relied on inconsistencies in the
14 record. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia
15 Lin, 534 F.3d at 163-64, 166-67. As the agency noted, at
16 the merits hearing, Zhang provided inconsistent testimony as
17 to the date when he was arrested in connection with his
18 ex-wife’s second pregnancy. When first asked about the
19 family planning violation, Zhang testified that Chinese
20 officials came to his home on November 5, 1994, arrested
21 him, and took him to the “Family Clinic” where he was
22 detained for 11 days. Later, when asked what had happened on
23 November 11, 1994, Zhang responded, “That was when I was
3
1 arrested by them inside.” When asked to clarify, Zhang
2 stated that he “misspoke” and that he was detained for 11
3 days. Thus, Zhang's assertion in his brief that he “never
4 stated that he was arrested on November 11, 1994 during his
5 testimony and always stated that he was arrested on November
6 5, 1994,” is refuted by the hearing transcript.
7 Second, in assessing Zhang’s credibility, the agency
8 reasonably relied on inconsistencies between the statements
9 he made during his credible fear interview and the testimony
10 he provided at the merits hearing. In its decision, the BIA
11 determined that the IJ’s reliance on the credible fear
12 interview was warranted because the record of that interview
13 bore “the indicia of reliability.” While “adverse
14 credibility determinations based on ‘discrepancies’ with a
15 credible fear interview should be examined with care to
16 ensure that they are not arbitrary,” where the credible fear
17 interview bears the “hallmarks of reliability,” it may
18 appropriately be considered in assessing an alien’s
19 credibility. Ming Zhang v. Holder, 585 F.3d 715, 725 (2d
20 Cir. 2009); see also Ramsameachire v. Ashcroft, 357 F.3d
21 169, 180-81 (2d Cir. 2004). Here, the BIA correctly
22 determined that Zhang’s credible fear interview bore
23 sufficient indicia of reliability. First, the interview was
4
1 memorialized in a typed document setting forth the questions
2 asked and Zhang’s responses, and this document was included
3 as an exhibit in the removal proceedings. See Ming Zhang,
4 585 F.3d at 725; Ramsameachire, 357 F.3d at 180 (“verbatim
5 account or transcript” of the interview more reliable than a
6 summary). The record also reflects that the interview was
7 conducted with the aid of a Mandarin translator, and Zhang’s
8 responses demonstrated his understanding of the questions
9 presented during the interview. See Ming Zhang, 585 F.3d at
10 725. Further, the asylum officer indicated on his report
11 that, before the interview began, he explained to Zhang “the
12 purpose of the interview, the importance of providing full
13 and accurate testimony, and the fact that [Zhang] could ask
14 for clarification at any point during the proceedings.”
15 Ming Zhang, 585 F.3d at 725. Finally, Zhang was asked
16 questions that were “clearly designed to elicit a potential
17 basis for an asylum claim,” Ramsameachire, 357 F.3d at 181,
18 such as whether he believed that anyone in China wanted to
19 harm him on account of his religion or political opinion,
20 whether he had previously been harmed in China, and whether
21 he was afraid that he would be harmed if returned to China.
22 See Ming Zhang, 585 F.3d at 725.
23 Given the reliability of these aspects of the credible
5
1 fear interview, the agency reasonably relied on the
2 discrepancies between Zhang’s statements at that interview
3 and his testimony at the merits hearing in assessing his
4 credibility. For example, during his credible fear
5 interview, Zhang stated that he had sold Falun Gong books
6 “to make a living,” and continued to sell the books after he
7 was arrested for doing so because “the money was good,” and
8 detailed the amounts he charged for the books. At the
9 merits hearing, however, Zhang testified that he began to
10 “pass out” Falun Gong books after he became reacquainted
11 with an old friend who had started practicing Falun Gong and
12 was impressed with the changes in his friend’s temperament.
13 Zhang further testified that he did not receive payment for
14 passing out the books, but was told that, if he were
15 arrested, he should tell the police that he was selling the
16 books for profit. When asked why he began passing out the
17 books, Zhang responded that it was because he “ha[d] . . .
18 faith in Falun Gong, I saw them after my friend practiced[,]
19 his health got a lot better.”
20 In his brief, Zhang argues that because “the
21 motivations of an asylum seeker are irrelevant to whether or
22 not relief should be granted,” it is not an inconsistency
23 within the meaning of the REAL ID Act for an asylum seeker
6
1 to “state different and contradictory motivations for his
2 actions.” The case he cites for this proposition, Kyaw Zwar
3 Tun v. U.S. INS, 445 F.3d 554 (2d Cir. 2006), does not
4 support this conclusion. In Tun, we stated that “there is
5 no requirement that the political activities that give rise
6 to a risk of persecution be motivated by actual political
7 beliefs.” Kyaw Zwar Tun, 445 F.3d at 570-71. Thus, while
8 Tun stands for the proposition that a petitioner’s political
9 beliefs do not have to be genuine to give rise to a risk of
10 persecution, it does not support a conclusion that an
11 alien’s proffered contradictory motivations may not be taken
12 into account in assessing his overall credibility,
13 especially under the REAL ID Act when an adverse credibility
14 determination is made upon the totality of the
15 circumstances. See Xiu Xia Lin, 534 F.3d at 163-64.
16 Finally, Zhang has not challenged the IJ’s finding that
17 he was not credible based in part on his demeanor, and we
18 give particular deference to that assessment. See Majidi v.
19 Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
20 Thus, given the inconsistencies and demeanor finding,
21 the adverse credibility determination is supported by
22 substantial evidence, and we find no error in the agency’s
23 denial of Zhang’s application for asylum, withholding of
7
1 removal, and CAT relief on credibility grounds as those
2 claims were all based on his alleged violation of China’s
3 family planning policy and his purported involvement with
4 Falun Gong. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
5 Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
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