Zhu v. Barr ( 2020 )

18-3708
Zhu v. Barr BIA
McCarthy, IJ
A209 155 050
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 15th day of December, two thousand twenty.
5
6 PRESENT:
7 RAYMOND J. LOHIER, JR.,
8 JOSEPH F. BIANCO,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 ZEFEI ZHU,
14 Petitioner,
15
16 v. 18-3708
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Yevgeny Samokhleb, Law Offices of
24 Yevgeny Samokhleb, P.C., New York,
25 NY.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General; Derek
29 C. Julius, Assistant Director;
1 Bernard A. Joseph, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Zefei Zhu, a native and citizen of the
10 People’s Republic of China, seeks review of a November 29,
11 2018, decision of the BIA affirming a December 13, 2017,
12 decision of an Immigration Judge (“IJ”) denying asylum,
13 withholding of removal, and protection under the Convention
14 Against Torture (“CAT”). In re Zefei Zhu, No. A 209 155 050
15 (B.I.A. Nov. 29, 2018), aff’g No. A 209 155 050 (Immig. Ct.
16 N.Y. City Dec. 13, 2017). We assume the parties’ familiarity
17 with the underlying facts and procedural history.
18 We have reviewed both the IJ’s and the BIA’s decisions
19 “for the sake of completeness.” Wangchuck v. Dep’t of
20 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The
21 applicable standards of review are well established. See 8
22 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
23 67, 76 (2d Cir. 2018) (reviewing adverse credibility
2
1 determination for substantial evidence).
2 “Considering the totality of the circumstances, and all
3 relevant factors, a trier of fact may base a credibility
4 determination on the demeanor, candor, or responsiveness of
5 the applicant . . . , the inherent plausibility of the
6 applicant’s . . . account,” and inconsistencies within and
7 between an applicant’s statements “without regard to whether”
8 they go “to the heart of the applicant’s claim.” See 8 U.S.C.
9 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
10 determination unless, from the totality of the circumstances,
11 it is plain that no reasonable fact-finder could make such an
12 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
13 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
14 at 76. Substantial evidence supports the adverse credibility
15 determination.
16 In finding Zhu not credible, the agency reasonably relied
17 on Zhu’s inconsistent statements at his credible fear
18 interview and hearing. As an initial matter, we have
19 examined the record of the credible fear interview and find
20 no error in the agency’s conclusion that it was sufficiently
21 reliable: the interview was conducted with an interpreter,
3
1 the questions and answers were recorded in a typewritten
2 document, the questions were designed to elicit details of
3 Zhu’s asylum claim, and Zhu’s responses indicate that he
4 understood the questions. See Ming Zhang v. Holder, 585 F.3d
5 715, 723–25 (2d Cir. 2009). The inconsistencies support the
6 adverse credibility determination because Zhu gave specific,
7 but inconsistent dates of his arrest, he was inconsistent as
8 to whether the police called his house every ten days or just
9 once after his release from detention, and he stated at his
10 interview that he left China for the first time in July 2016,
11 but acknowledged at the hearing that he attempted a prior
12 departure, but was turned back when he reached Mexico. See
13 8 U.S.C. § 1158(b)(1)(B)(iii). Moreover, Zhu testified that
14 the police came to his home after he attended another church
15 gathering after his release from detention, but he failed to
16 mention that in his asylum application. See Xiu Xia Lin, 534
17 F.3d at 166 (upholding agency’s reliance on omissions from
18 prior statements); Ming Zhang, 585 F.3d at 726 (holding that
19 the agency may “draw an adverse inference about petitioner’s
20 credibility based, inter alia, on h[is] failure to mention”
21 important details or events in prior statements); see also
4
1 Hong Fei Gao, 891 F.3d at 78 (holding that “the probative
2 value of a witness’s prior silence on particular facts depends
3 on whether those facts are ones the witness would reasonably
4 have been expected to disclose”).
5 The agency was not required to credit Zhu’s explanation
6 that he was nervous, particularly because he gave precise
7 dates for his arrest. See Ming Zhang, 585 F.3d at 722
8 (“alien’s mere recitation that he was nervous or felt
9 pressured during an . . . interview will not automatically
10 prevent the IJ or BIA from relying [on] statements in such
11 interviews when making adverse credibility determinations”).
12 Moreover, as the IJ pointed out, Zhu’s answers at the
13 interview were consistent with his testimony in other
14 respects and the inconsistency in the arrest date appeared to
15 be an attempt to reconcile a conflict between the date he
16 gave for his arrest and detention and his later
17 acknowledgement of his first departure from China.
18 Given the multiple inconsistencies that go to the basis
19 for the claim of persecution, the agency’s adverse
20 credibility determination is supported by substantial
21 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu
5
1 Xia Lin, 534 F.3d at 163–64. That determination is
2 dispositive of asylum, withholding of removal, and CAT relief
3 because all three claims are based on the same factual
4 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
5 Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. All pending motions and applications are DENIED and
8 stays VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
6