Ming Zhang v. Lynch ( 2016 )

15-135
Zhang v. Lynch
BIA
Christensen, IJ
A201 160 560
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of June, two thousand sixteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MING ZHANG,
14 Petitioner,
15
16 v. 15-135
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York,
24 New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Linda S.
28 Wernery, Assistant Director;
29 Gregory M. Kelch, Trial Attorney,
30 Office of Immigration Litigation,
31 United 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 is
4 DENIED.
5 Petitioner Ming Zhang, a native and citizen of the People’s
6 Republic of China, seeks review of a December 18, 2014, decision
7 of the BIA, affirming a November 22, 2013, decision of an
8 Immigration Judge (“IJ”) denying Zhang’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Ming Zhang, No. A201 160 560
11 (B.I.A. Dec. 18, 2014), aff’g No. A201 160 560 (Immig. Ct. N.Y.
12 City Nov. 22, 2013). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have considered
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
17 524, 528 (2d Cir. 2006). The applicable standards of review
18 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
19 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency
20 may, “[c]onsidering the totality of the circumstances,” base
21 a credibility finding on inconsistencies in an asylum
22 applicant’s statements and other record evidence “without
2
1 regard to whether” they go “to the heart of the applicant’s
2 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
3 at 163-64. Substantial evidence supports the agency’s
4 determination that Zhang was not credible.
5 The agency reasonably relied on discrepancies between
6 Zhang’s testimony and his mother’s affidavit regarding his
7 mother’s residence. See Xiu Xia Lin, 534 F.3d at 165-67. His
8 mother’s 2012 affidavit stated that she was residing at the
9 address of the house that Zhang testified Chinese government
10 officials had confiscated and demolished in 2009. Zhang’s
11 explanations for this inconsistency are not compelling. See
12 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). The
13 veracity of his mother’s affidavit is further impugned by the
14 striking similarities between it and Zhang’s own written
15 statement. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d
16 517, 524 (2d Cir. 2007); Singh v. BIA, 438 F.3d 145, 148 (2d
17 Cir. 2006). Although Zhang testified that he had not shared
18 or discussed his statement with his mother, both statements
19 detail Zhang’s interactions with police using identical
20 paragraph structure and language, and present the information
21 in exactly the same order. Zhang was given an opportunity to
22 explain these similarities as required, see Matter of R-K-K-,
3
1 26 I. & N. Dec. 658, 661 (B.I.A. 2015), but his explanation that
2 the similarities were coincidental because he and his mother
3 experienced the same events was not compelling, see Majidi, 430
4 F.3d at 80.
5 Given the inconsistency regarding his mother’s residence
6 and the striking similarities between his statement and his
7 mother’s affidavit, both of which relate to the basis of his
8 claim, the agency reasonably found Zhang not credible.* See
9 Xiu Xia Lin, 534 F.3d at 165-66. That finding is dispositive
10 of Zhang’s claims for asylum, withholding of removal, and CAT
11 relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
12 2006). Accordingly, we do not reach the agency’s alternative
13 bases for denying relief. See INS v. Bagamasbad, 429 U.S. 24,
14 25 (1976).
15
16
17
18
* We credit Zhang’s explanation that a translation error caused
an inconsistency regarding his father’s residency in Spain.
Nevertheless, remand is unnecessary because the IJ’s other
findings constitute substantial evidence to support the adverse
credibility determination. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 339 (2d Cir. 2006) (holding that remand
is futile when we can “confidently predict” that the agency
would reach the same decision absent any errors).
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O=Hagan Wolfe, Clerk
5