Peng Fei Zhu v. Holder

10-2626-ag
Zhu v. Holder
BIA
Schoppert, IJ
A099 686 818
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 22nd day of February, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
PENG FEI ZHU, AKA ZHI YANG ZHOU,
Petitioner,
v. 10-2626-ag
NAC
ERIC H. HOLDER, JR., UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Eric Y. Zheng, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Thomas B. Fatouros, Senior
Litigation Counsel; Annette M.
Wietecha, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
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.
Peng Fei Zhu, a native and citizen of China, seeks
review of a June 15, 2010 decision of the BIA affirming the
July 22, 2008 decision of Immigration Judge (“IJ”) Douglas
B. Schoppert, which denied his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Peng Fei Zhu, No. A099 686
818 (B.I.A. June 15, 2010), aff’g No. A099 686 818 (Immig.
Ct. N.Y. City July 22, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
Under the circumstances of this case, we review both
the IJ’s and BIA’s decisions. Dong Gao v. BIA, 482 F.3d
122, 126 (2d Cir. 2007); Zaman v. Mukasey, 514 F.3d 233, 237
(2d Cir. 2008). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); see also
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
As an initial matter, because Zhu failed to challenge
the IJ’s denial of CAT relief in his appeal to the BIA, we
2
are without jurisdiction to consider his challenge to the
denial of that relief. 8 U.S.C. § 1252(d)(1); Karaj v.
Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). Accordingly, we
address only the agency’s denial of asylum and withholding
of removal on credibility grounds.
For asylum applications such as Zhu’s, governed by the
amendments made to the Immigration and Nationality Act by
the REAL ID Act of 2005, the agency may, considering the
totality of the circumstances, base a credibility finding on
an asylum applicant’s “demeanor, candor, or responsiveness,”
the plausibility of his or her account, and inconsistencies
in his or her statements, without regard to whether they go
“to the heart of the applicant’s claim.” See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008) (“For cases filed after May 11, 2005 . .
. an 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.”). We will “defer . . . to an
IJ’s credibility determination unless, from the totality of
the circumstances, it is plain that no reasonable fact-
finder could make” such a ruling. Xiu Xia Lin, 534 F.3d at
167.
3
In this case, substantial evidence supports the
agency’s adverse credibility determination. In finding Zhu
not credible, the agency reasonably relied on an
inconsistency between documentary evidence and the testimony
of Zhu and his witness. As the agency found, Zhu submitted
a letter, written by his witness Reverend Tsang, stating
that Zhu had been attending his church in the United States
since March 2005, which conflicted with Tsang’s testimony
that Zhu had been attending his church since March 2007 and
Zhu’s testimony that he did not enter the United States
until October 2005. A reasonable fact-finder would not be
compelled to credit Zhu’s explanation that Tsang made an
error given Tsang’s testimony that Zhu provided him with the
relevant dates. See Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005) (holding that the agency need not credit an
applicant’s explanations for inconsistent testimony unless
those explanations would compel a reasonable fact-finder to
do so).
The agency also reasonably relied on an implausibility
finding given that Zhu testified that he traveled to
Malaysia to seek asylum and to obtain a Haitian visa, but
returned to China three or four days later, having been
4
unable to obtain either relief, where he almost immediately
obtained a Haitian visa. While Zhu submitted two letters,
one from his father and one from a friend in China, both of
which described the events leading to Zhu’s departure from
China and travel to the United States, neither letter made
reference to Zhu’s trip to Malaysia and thus the
implausibility finding is sufficiently grounded in the
record. See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d
Cir. 2007) (“[S]peculation that inheres in inference is not
‘bald’ if the inference is made available to the factfinder
by record facts, even a single fact, viewed in the light of
common sense and ordinary experience.”).
In addition to the inconsistency and implausibility
findings, the agency reasonably relied on Zhu’s failure to
corroborate his claims in finding him not credible. See
Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per
curiam). Zhu testified that he first formed his intent to
leave China in May 2005, after he was detained and beaten,
but explained he had obtained a Chinese passport in January
2005 because his parents thought about sending him abroad to
further his education. His father’s letter, however,
indicated that his father and mother did not decide to send
5
him abroad until July 2005, and that decision was made to
protect him, not for educational reasons. Because Zhu could
have obtained a letter from his father to corroborate this
point, the agency did not err in finding that he should have
submitted additional evidence. See Biao Yang, 496 F.3d at
273 (“An applicant’s failure to corroborate his or her
testimony may bear on credibility, because the absence of
corroboration in general makes an applicant unable to
rehabilitate testimony that has already been called into
question.”).
The IJ properly relied on the cumulative effect of the
inconsistency, implausibility, and lack of corroboration in
finding Zhu not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii)
(an IJ may base a credibility determination on “the totality
of the circumstances, and all relevant factors”); see also
Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107
(2d Cir. 2006). Moreover, a reasonable fact-finder would
not be compelled to accept Zhu’s explanation for the
inconsistency. The totality of the circumstances therefore
supports the agency’s adverse credibility determination, and
we defer to that finding. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Thus,
6
we find no error in the agency’s denial of asylum and
withholding of removal on credibility grounds. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7