Fa Shen Zhang v. Bureau of Citizenship & Immigration Services

08-4675-ag
Zhang v. BCIS
BIA
Romig, IJ
A099-930-675
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18 th day of February, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 FA SHEN ZHANG,
14 Petitioner,
15
16 v. 08-4675-ag
17 NAC
18 BUREAU OF CITIZENSHIP AND IMMIGRATION
19 SERVICES,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: John Chang, New York, New York.
24 FOR RESPONDENT: Tony West, Assistant Attorney
25 General; Linda S. Wernery, Assistant
26 Director; Scott Rempell, Attorney,
27 Office of Immigration Litigation,
28 United States Department of Justice,
29 Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Fa Shen Zhang, a native and citizen of the
7 People’s Republic of China, seeks review of an August 29,
8 2008 order of the BIA affirming the October 31, 2007
9 decision of Immigration Judge (“IJ”) Jeffrey L. Romig
10 pretermitting his application for asylum and denying his
11 applications for withholding of removal and relief under the
12 Convention Against Torture (“CAT”). In re Fa Shen Zhang,
13 No. A 099 930 675 (B.I.A. Aug. 29, 2008), aff’g No. A 099
14 930 675 (Immig. Ct. N.Y. City Oct. 31, 2007). We assume the
15 parties’ familiarity with the underlying facts and
16 procedural history in this case.
17 When the BIA issues an opinion that fully adopts the
18 IJ’s decision, this Court reviews the IJ’s decision. See
19 Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d
20 Cir. 2007). We review the agency’s factual findings,
21 including adverse credibility findings, under the
22 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
23 see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
2
1 For asylum applications governed by the REAL ID Act of 2005,
2 the agency may, considering the totality of the
3 circumstances, base a credibility finding on an asylum
4 applicant’s demeanor, the plausibility of his or her
5 account, and inconsistencies in his or her statements,
6 without regard to whether they go “to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Thus,
8 we “defer . . . to an IJ’s credibility determination unless,
9 from the totality of the circumstances, it is plain that no
10 reasonable fact-finder could make such an adverse
11 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
12 167 (2d Cir. 2008).
13 As an initial matter, because Zhang fails to challenge
14 the agency’s pretermission of his asylum application before
15 this Court, we deem any such challenge waived. See Yueqing
16 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
17 2005). Contrary to the government’s assertion, however,
18 Zhang preserved his challenge to the agency’s denial of his
19 application for CAT relief because in his brief to this
20 Court he sets out the standard for CAT relief, argues that
21 he met that standard, and challenges the primary basis for
22 the IJ’s denial of that relief – the IJ’s adverse
3
1 credibility determination.
2 I. Past Persecution Claim
3 Substantial evidence supports the IJ’s adverse
4 credibility determination. Because Zhang does not challenge
5 the IJ’s reliance on the similarities between his
6 declaration and his friend’s letter or the IJ’s rejection of
7 his explanation for those similarities, we deem waived any
8 such challenge. Thus, that finding stands as a valid basis
9 for the IJ’s adverse credibility determination. See id.;
10 see also Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.
11 2008).
12 In finding Zhang not credible, the IJ also relied upon:
13 (1)the omission from Zhang’s asylum application of the
14 beatings he allegedly received during his detention because
15 he failed to provide the names of other underground church
16 members; (2) the inconsistency between Zhang’s testimony
17 that his initial interrogation lasted two to three hours and
18 his later testimony that it only lasted thirty minutes; and
19 (3) Zhang’s unresponsive demeanor during questioning about
20 his detention. Zhang argues that the omissions and
21 inconsistencies were too minor to support an adverse
22 credibility determination. Contrary to Zhang’s argument,
4
1 under the REAL ID Act, “an IJ may rely on any inconsistency
2 or omission in making an adverse credibility determination
3 as long as the ‘totality of the circumstances’ establishes
4 that an asylum applicant is not credible.” Xiu Xia Lin, 534
5 F.3d at 167; see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265
6 (BIA 2007).
7 Contrary to Zhang’s assertion that the IJ did not cite
8 specific examples supporting his demeanor finding, the IJ
9 noted that Zhang’s testimony was unresponsive during
10 questioning regarding his detention. We accord great
11 deference to such assessments of an applicant’s demeanor.
12 See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
13 The IJ also properly found that Zhang’s deficient
14 corroboration rendered him unable to rehabilitate his
15 testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
16 F.3d 315, 341 (2d Cir. 2006).
17 Taken as a whole, the IJ’s adverse credibility
18 determination was supported by substantial evidence. See
19 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
20 Therefore, the IJ properly denied Zhang’s applications for
21 withholding of removal and CAT relief to the extent that
22 they were based on what allegedly occurred in China. See
5
1 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
2 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
3 2005).
4 II. Claim Based on Religious Practice in the United States
5 Despite the IJ’s adverse credibility determination, he
6 credited Zhang’s claim that he practices Christianity.
7 Nonetheless, as the IJ found, no evidence indicates either
8 that Chinese authorities would become aware of Zhang’s
9 religious practice or that they would target him on that
10 basis. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d
11 Cir. 2008) (finding that “to establish a well-founded fear
12 of persecution in the absence of any evidence of past
13 persecution, an alien must make some showing that
14 authorities in his country of nationality are either aware
15 of his activities or likely to become aware of his
16 activities”); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
17 Cir. 2005) (finding that a fear is not objectively
18 reasonable if it lacks “solid support” in the record and is
19 merely “speculative at best”). Although Zhang asserts that
20 he need not demonstrate an individual risk of harm because
21 there is a pattern or practice of persecution of Christians
22 in China, we decline to address that unexhausted issue. See
6
1 Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d
2 Cir. 2007).
3 Because Zhang was unable to show the objective
4 likelihood of persecution needed to make out an asylum claim
5 based on his religious practices in the United States, * he
6 was necessarily unable to meet the higher standard required
7 to succeed on a claim for withholding of removal or CAT
8 relief to the extent all three claims were based on that
9 factual predicate. See Paul, 444 F.3d at 156; Kyaw Zwar Tun
10 v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (holding that
11 torture is “something more severe than the kind of treatment
12 that would suffice to prove persecution”).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any pending motion
15 for a stay of removal in this petition is DISMISSED as moot.
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
21
*
As stated above, the IJ pretermitted Zhang’s asylum
application. Nonetheless, for purposes of his analysis,
he evaluated whether Zhang had met the asylum standard.
7