Zhao v. Sessions

16-1687
Zhao v. Sessions
BIA
Wright, IJ
A205 043 057
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 11th day of April, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 RUXING ZHAO,
14 Petitioner,
15
16 v. 16-1687
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Aminat Sabak, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; John S.
27 Hogan, Assistant Director; Lindsay
28 C. Dunn, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
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 Ruxing Zhao, a native and citizen of the
6 People’s Republic of China, seeks review of a May 6, 2016,
7 decision of the BIA, affirming a March 26, 2015, decision of
8 an Immigration Judge (“IJ”) denying Zhao’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Ruxing Zhao, No. A205 043 057
11 (B.I.A. May 6, 2016), aff’g No. A205 043 057 (Immig. Ct. N.Y.
12 City Mar. 26, 2015). 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 reviewed both
15 the IJ’s and the BIA’s decisions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). We review the agency’s adverse credibility
18 determination for substantial evidence. See 8 U.S.C.
19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
20 (2d Cir. 2008).
21 For asylum applications like Zhao’s, governed by the REAL
22 ID Act, the agency may, “[c]onsidering the totality of the
23 circumstances,” base a credibility finding on an applicant’s
2
1 “demeanor, candor, or responsiveness,” “the inherent
2 plausibility of the applicant’s . . . account,” and on
3 inconsistencies in an applicant’s statements and evidence. 8
4 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 164 n.2.
5 “We defer . . . to an IJ’s credibility determination unless,
6 from the totality of the circumstances, it is plain that no
7 reasonable fact-finder could make such an adverse credibility
8 ruling.” Id. at 167. Substantial evidence supports the
9 adverse credibility determination.
10 The agency reasonably relied on inconsistencies between
11 Zhao’s testimony and evidence. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii). The inconsistencies are reflected in
13 the record and provide substantial support for the adverse
14 credibility determination as they concern whether similarly
15 situated individuals were targeted for attending an underground
16 church. Cf. Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d
17 289, 295 (2d Cir. 2006) (concluding that “a material
18 inconsistency” relating to “the very persecution from which
19 [the applicant] sought asylum, . . . afforded substantial
20 evidence to support the adverse credibility finding.” (internal
21 quotation marks and citation omitted)). For example, Zhao had
22 difficulty naming individuals in China whom he knew to have been
23 targeted for attending an underground church, despite the fact
3
1 that letters from his father and aunt both recounted their
2 run-ins with Chinese authorities on that basis. Contrary to
3 Zhao’s argument in his brief that the IJ erred in not confronting
4 him with this discrepancy, the IJ was not required to do so
5 because the inconsistency was “obvious on its face” and
6 concerned the central basis of his fear of persecution. Ming
7 Shi Xue v. BIA, 439 F.3d 111, 122 n.13, 125 (2d Cir. 2006).
8 The agency also reasonably found implausible Zhao’s
9 testimony that Chinese authorities visited his father’s home
10 to warn his father that Zhao was “subject to [] administrative
11 punishment” yet did not arrest his father for attending an
12 underground church. See Wensheng Yan v. Mukasey, 509 F.3d 63,
13 66 (2d Cir. 2007) (“[I]n assessing the credibility of an asylum
14 applicant’s testimony, an IJ is entitled to consider whether
15 the applicant’s story is inherently implausible.”).
16 The adverse credibility determination is bolstered by the
17 agency’s demeanor finding. The agency reasonably found that
18 Zhao’s difficulty remembering names of people he sought to
19 proselytize damaged his credibility. We defer to that finding,
20 particularly given the evidence of Zhao’s difficulty naming
21 individuals to whom he proselytized, despite having testified
22 that he proselytized to many friends and family members. See
23 Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005); Tu Lin
4
1 v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (“Evasiveness is,
2 of course, one of the many outward signs a fact-finder may
3 consider in evaluating demeanor and in making an assessment of
4 credibility.”).
5 Nor do we discern error in the agency’s decision to give
6 limited weight to Zhao’s corroborating evidence. See Y.C. v.
7 Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the
8 agency’s determination of the weight afforded to an alien’s
9 documentary evidence.”). Zhao’s letters from China were
10 authored by individuals not subject to cross examination, and
11 a church letter from the United States was inconsistent with
12 Chen’s testimony. Id. (upholding agency’s decision to give
13 little weight to letter from family member in China). Nor do
14 we discern error in the agency’s conclusion that Zhao’s
15 credibility was further damaged by failing to provide letters
16 from the family and friends to whom he allegedly proselytized.
17 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
18 The agency was not compelled to accept Zhao’s explanation that
19 they were “afraid of writing” letters. See Majidi, 430 F.3d
20 at 80 (“A petitioner must do more than offer a plausible
21 explanation for his inconsistent statements to secure relief;
22 he must demonstrate that a reasonable fact-finder would be
5
1 compelled to credit his testimony.” (internal quotation marks
2 omitted)).
3 Given the inconsistencies, the implausibility of Zhao’s
4 testimony, the demeanor finding, and the lack of reliable
5 corroboration, the totality of the circumstances supports the
6 adverse credibility determination. Xiu Xia Lin, 534 F.3d at7 167. The adverse credibility determination is dispositive of
8 asylum, withholding of removal, and CAT relief because all three
9 forms of relief are based on the same factual predicate. Paul
10 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
6