Wu v. Sessions

17-935
Wu v. Sessions
BIA
Christensen, IJ
A206 690 804
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 3rd day of May, two thousand eighteen.
PRESENT:
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_____________________________________
ZHENDE WU, AKA WU ZHENDE,
Petitioner,
v. 17-935
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gerald Karikari, Karikari &
Associates, P.C., New York, NY.
FOR RESPONDENT: Chad A. Readler, Principal Deputy
Assistant Attorney General; John S.
Hogan, Assistant Director; Lindsay
Corliss, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Zhende Wu, a native and citizen of the
People’s Republic of China, seeks review of a March 9, 2017,
decision of the BIA affirming a July 20, 2016, decision of an
Immigration Judge (“IJ”) denying Wu’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Zhende Wu, No. A206 690 804
(B.I.A. Mar. 9, 2017), aff’g No. A206 690 804 (Immig. Ct.
N.Y. City July 20, 2016). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Security, 448
F.3d 524, 528 (2d Cir. 2006). The applicable standards of
review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
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“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . the consistency between the applicant’s
or witness’s written and oral statements . . . , the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 & n.2.
Substantial evidence supports the agency’s determination that
Wu was not credible as to his claim that he attended church
in China, that Chinese officials detained and harmed him on
account of his distribution of religious pamphlets, and that
he continues to practice Christianity in the United States.
Certified Administrative Record (“CAR”) at 35–36.
The agency reasonably determined that there were
inconsistencies between Wu’s statements in his asylum
application, at a credible fear interview, and at his hearing
before the IJ, regarding how often he attended church in China
and how he was treated when he was detained in China. See
8 U.S.C. § 1158(b)(1)(B)(iii); see Ming Zhang v. Holder, 585
F.3d 715, 724-25 (2d Cir. 2009) (finding record of credible
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fear interview reliable when interview was conducted with
interpreter and record is typewritten, demonstrates that
applicant understood the questions, and includes questions
about past harm or fear of future harm). Wu did not provide
compelling explanations for these inconsistencies. See
Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation
for his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled
to credit his testimony.” (internal quotation marks
omitted)).
The agency also reasonably found discrepancies in Wu’s
accounts of why he began practicing Christianity. In his
initial statements, he claimed that his friend converted him
to Christianity at a time when his wife was in hiding from
family planning officials, family planning officials were
harassing him, and he had closed his business due to debt.
However, he later testified that his wife was six or seven
months pregnant and present at their house when his friend
converted him to Christianity. When asked why she was no
longer hiding at that time, Wu testified that they had paid
a fine to resolve their problems with family planning
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officials. When confronted with his discrepant statements
regarding why he converted to Christianity, Wu testified that
he was primarily focused on his Christianity claim and thus
did not previously mention their payment of the family
planning fine. The agency was not compelled to credit this
explanation because Wu claimed that his problems with family
planning officials led him to practice Christianity. See id.
at 81.
The agency also reasonably relied on inconsistencies
between Wu’s testimony that he was detained in China after
three police officers approached him when he was distributing
religious pamphlets with two friends, and his friend’s
statement that only one officer approached them. See
8 U.S.C. § 1158(b)(1)(B)(iii). When confronted with this
inconsistency, Wu changed his testimony to conform with his
friend’s statement, stating that one officer approached them
but three officers chased them. Wu now argues that his
friend’s statement was mistranslated, and actually states
that three police officers approached them. This explanation
compounds the inconsistency given that Wu initially changed
his testimony to match his friend’s statement. See Majidi,
430 F.3d at 80.
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Finally, although minor, the agency reasonably noted that
a letter from Wu’s church stated that he was baptized on
February 7, 2015, but the baptism certificate states that he
was baptized on the same date in 2016. See Diallo v. INS,
232 F.3d 279, 287-88 (2d Cir. 2000) (recognizing that minor
discrepancies in dates need not be fatal to an applicant’s
credibility); Xiu Xia Lin, 534 F.3d at 167 (“[A]n IJ may rely
on any inconsistency or omission in making an adverse
credibility determination as long as the ‘totality of the
circumstances’ establishes that an asylum applicant is not
credible.” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))).
Given these inconsistencies, as well as the IJ’s
consideration of “the totality of circumstances, including
[Wu’s] demeanor while testifying, his responsiveness to the
questions that were asked, [and] the inherent plausibility of
his claim,” CAR at 4, the agency’s adverse credibility
determination is supported by substantial evidence, 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Contrary
to Wu’s contention, that determination is dispositive of
asylum, withholding of removal, and CAT relief because the IJ
explicitly concluded that Wu was not credible as to all
aspects of his claim, including his assertion that he is a
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practicing Christian. See Paul v. Gonzales, 444 F.3d 148,
156-57 (2d Cir. 2006).*
For the foregoing reasons, Wu’s petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
* Although the BIA and Government concluded that Wu waived
his CAT claim, Wu’s challenge to the adverse credibility
determination necessarily included a challenge to the IJ’s
denial of CAT relief because the IJ denied all relief on
credibility grounds.
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