Zhang v. Sessions

16-2797
Zhang v. Sessions
BIA
Loprest, IJ
A205 427 612
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 8th day of May, two thousand eighteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 RONGWEI ZHANG,
14 Petitioner,
15
16 v. 16-2797
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Julie M.
27 Iversen, Senior Litigation
28 Counsel; Annette M. Wietecha,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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
4 is DENIED.
5 Petitioner Rongwei Zhang, a native and citizen of the
6 People’s Republic of China, seeks review of an August 1,
7 2016, decision of the BIA affirming a December 9, 2014,
8 decision of an Immigration Judge (“IJ”) denying Zhang’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re
11 Rongwei Zhang, No. A 205 427 612 (B.I.A. Aug. 1, 2016),
12 aff’g No. A 205 427 612 (Immig. Ct. N.Y. City Dec. 9, 2014).
13 We assume the parties’ familiarity with the underlying
14 facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA’s and IJ’s decisions. Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
20 66 (2d Cir. 2008).
21 “Considering the totality of the circumstances, and all
22 relevant factors, [an IJ] may base a credibility
23 determination on the applicant’s . . . demeanor, candor, or
2
1 responsiveness . . . the consistency between the
2 applicant’s . . . written and oral statements . . ., the
3 internal consistency of each such statement, [and] the
4 consistency of such statements with other evidence of
5 record.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia
6 Lin, 534 F.3d at 163-64, 167. “We defer . . . to an IJ’s
7 credibility determination unless . . . it is plain that no
8 reasonable fact-finder could make such an adverse
9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
10 Substantial evidence supports the agency’s determination
11 that Zhang was not credible.
12 The agency reasonably relied on a discrepancy regarding
13 Zhang’s detention: while Zhang alleged that she was
14 detained at her workplace for 2 days and was later arrested
15 and detained by the police for 6 days, letters she
16 submitted from her husband and her sister describe threats
17 and harassment, but do not mention that she was arrested or
18 detained. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
19 F.3d at 166-67 & n.3 (“An inconsistency and an omission
20 are, for [credibility] purposes, functionally
21 equivalent.”). Zhang did not provide an explanation for
22 the discrepancy. See Majidi v. Gonzales, 430 F.3d 77, 80-
23 81 (2d Cir. 2005) (holding that agency is not required to
3
1 credit explanations that are less than compelling).
2 Discrepancies regarding Zhang’s union membership and the
3 date and manner she was fired from her job at the liquor
4 factory provided further support for the adverse
5 credibility ruling. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
6 Lin, 534 F.3d at 166-67.
7 The adverse credibility determination was bolstered by
8 the IJ’s negative demeanor assessment, to which we defer.
9 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
10 Cir. 2006) (granting particular deference to the agency’s
11 demeanor findings). Review of the transcript confirms that
12 Zhang took several long pauses and had difficulty answering
13 questions, especially on cross examination.
14 The agency also reasonably relied on Zhang’s failure to
15 provide rehabilitative corroborating evidence. See Biao
16 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
17 applicant’s failure to corroborate [her] . . . testimony
18 may bear on credibility, because the absence of
19 corroboration in general makes an applicant unable to
20 rehabilitate testimony that has already been called into
21 question.”). The agency did not err in discounting the
22 letters from Zhang’s husband and sister: these letters were
23 authored by interested witnesses who were unavailable for
4
1 cross examination, the letters contained substantially
2 similar language, and, as described above, the letters
3 conflicted with Zhang’s testimony because they omitted her
4 detention. Y.C. v. Holder, 741 F.3d 325, 334 (2d Cir.
5 2013) (deferring to agency’s decision to give limited
6 weight to letter from applicant’s spouse in China). And
7 Zhang’s failure to submit proof of her employment was
8 problematic because she alleged that she was employed at
9 the same factory for over 20 years and received multiple
10 awards for her performance.
11 Because Zhang’s claims were all based on the same
12 factual predicate, the adverse credibility determination is
13 dispositive of asylum, withholding of removal, and CAT
14 relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
15 2006). In light of this outcome, we do not address the
16 agency’s alternative conclusion that Zhang was not harmed
17 on account of a political opinion. See INS v. Bagamasbad,
18 429 U.S. 24, 25 (1976) (“As a general rule courts and
19 agencies are not required to make findings on issues the
20 decision of which is unnecessary to the results they
21 reach.”).
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of removal
5
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument
4 in this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk of Court
9
6