Zou v. Barr

17-2970(L)
Zou v. Barr
BIA
Schoppert, IJ
A205 433 863
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 15th day of September, two thousand twenty.
PRESENT:
JON O. NEWMAN,
BARRINGTON D. PARKER,
MICHAEL H. PARK,
Circuit Judges.*
_____________________________________
XIAO MING ZOU,
Petitioner,
17-2970(L),
v. 18-1297(Con)
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; Anthony P.
* Circuit Judge Peter W. Hall, originally a member of the panel,
is currently unavailable. Circuit Judge Jon O. Newman has
replaced Judge Hall on the panel for this matter. See 2d Cir.
IOP E(b).
Nicastro, Assistant Director;
Jenny C. Lee, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
Petitioner Xiao Ming Zou, a native and citizen of the
People’s Republic of China, seeks review of (1) an April 3,
2018, decision of the BIA denying his motion to reopen, In re
Xiao Ming Zou, No. A205 433 863 (B.I.A. Apr. 3, 2018), and
(2) an August 30, 2017, decision of the BIA affirming a
December 12, 2016, decision of an Immigration Judge (“IJ”)
denying his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”), In
re Xiao Ming Zou, No. A205 433 863 (B.I.A. Aug. 30, 2017),
aff’g No. A205 433 863 (Immig. Ct. N.Y. City Dec. 12, 2016).
We assume the parties’ familiarity with the underlying facts
and procedural history.
A. Docket 17-2970(L), Order of Removal
Under the circumstances, we have reviewed both the IJ’s
and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
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Cir. 2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
“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 . . . [and] the
internal consistency of each such statement . . . 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). “We 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 an
adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
at 76. Substantial evidence supports the agency’s
determination that Zou was not credible as to his claim that
family planning officials twice detained and beat him for
resisting China’s family planning policy.
The agency reasonably relied on Zou’s inconsistent
statements regarding when he left China. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). During his hearing, Zou repeatedly
changed his testimony, stating that he had departed China in
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September 2007, September 2012, or January 2012. He
attempted to explain that he has poor hearing in one of his
ears and a “slow reaction.” The IJ was not compelled to
credit these explanations because Zou did not provide
evidence of hearing issues, he was asked the question numerous
times, and he did not indicate that he did not understand the
question. 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)).
Then, when confronted with his asylum application, which
provided yet another departure date of February 2012, Zou
immediately stated that his testimony was probably incorrect.
The agency reasonably concluded that Zou’s immediate
disavowing of his testimony along with his ever-changing
testimony regarding dates gave the impression that he was
attempting to testify to memorized dates from his application
rather than from actual experience. See Li Hua Lin v. U.S.
Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (finding it
reasonable for an IJ to conclude that changing testimony about
dates of significant events along with demeanor may suggest
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that an applicant is testifying from a memorized script
instead of experience).
The agency also reasonably relied on Zou’s inconsistent
statements about the circumstances of his second alleged
arrest in China. See 8 U.S.C. § 1158(b)(1)(B)(iii). In his
asylum application, Zou stated that, in 2010, family planning
officials knocked down the door while he and his wife were
eating breakfast and beat and arrested Zou when he tried to
prevent them from grabbing his wife. At his hearing,
however, Zou testified inconsistently that, in 2010, his wife
was in hiding and family planning officials arrested him at
home for refusing to disclose her location. When confronted
with this inconsistency, Zou claimed that he had forgotten
and then repeated the contents of his application. When
asked how he forgot that he was protecting his wife from
arrest rather than refusing to provide her location, Zou again
stated that he has a “slow reaction.” The IJ was not
compelled to credit this explanation, particularly when Zou
recalled with precision the contents of his asylum
application after a reminder of those contents. See Majidi,
430 F.3d at 80.
Having questioned Zou’s credibility, the agency
reasonably relied further on his failure to rehabilitate his
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testimony with reliable corroborating evidence. “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.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency
reasonably declined to credit the letters from Zou’s mother
and wife because the authors were interested witnesses who
were not available for cross-examination. See Y.C. v.
Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer
to the agency’s evaluation of the weight to be afforded an
applicant’s documentary evidence.”); see also In re H-L-H- &
Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that
letters from alien’s friends and family were insufficient to
provide substantial support for alien’s claims because they
were from interested witnesses not subject to cross-
examination), overruled on other grounds by Hui Lin Huang v.
Holder, 677 F.3d 130, 133–38 (2d Cir. 2012). The IJ also
acknowledged that Zou had presented a witness who attested to
having seen Zou in China in February 2012, but the IJ
reasonably concluded that this evidence did not overcome
Zou’s inconsistent testimony regarding when he departed China
because, while the witness’s statement was consistent with
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Zou’s application, it was inconsistent with Zou’s changing
testimony as to the date of his departure. See 8 U.S.C.
§ 1158(b)(1)(B)(iii).
Given the inconsistency and corroboration findings, the
agency’s adverse credibility determination is supported by
substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii).
That determination was dispositive of asylum, withholding of
removal, and CAT relief because all three forms of relief
were based on the same factual predicate.† See Paul v.
Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
B. Docket 18-1297(Con), Motion to Reopen
We review the agency’s denial of a motion to reopen for
abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 168-69 (2d Cir. 2008). “A motion to reopen proceedings
shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not
available and could not have been discovered or presented at
the former hearing.” 8 C.F.R. § 1003.2(c)(1); Norani v.
Gonzales, 451 F.3d 292, 294 (2d Cir. 2006) (“[I]n reviewing
the BIA’s determination of whether previously unavailable
† Contrary to the BIA’s and the Government’s conclusions, Zou
did not waive withholding of removal and CAT relief because
the IJ denied all forms of relief on credibility grounds and
Zou challenged the adverse credibility determination.
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evidence supported [a] motion to reopen, we must inquire
whether the evidence could have been presented at the hearing
before the IJ.”).
The BIA did not abuse its discretion in denying Zou’s
motion. First, the BIA did not err in finding that Zou’s
psychological evaluation was previously available because,
although the evaluation was conducted and prepared after the
IJ’s and BIA’s initial decisions, the evaluation discussed
only events and health issues that predated Zou’s 2016
hearing. See 8 C.F.R. § 1003.2(c)(1); see also Norani, 451
F.3d at 294. Further, the BIA did not err in its alternative
dispositive determination that the psychological evaluation
would not change the outcome of Zou’s proceedings because it
was based solely on Zou’s account of events during one meeting
and he did not present any objective evidence to support the
assertions he made during the evaluation. See INS v. Abudu,
485 U.S. 94, 104-05 (1988) (recognizing that failure to
establish prima facie eligibility for relief is a valid basis
to deny motion to reopen).
The BIA also did not err in rejecting Zou’s argument that
the IJ should have evaluated his competency and required
safeguards to help him proceed more effectively at his
hearing. “[T]he test for determining whether an alien is
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competent to participate in immigration proceedings is
whether he or she has a rational and factual understanding of
the nature and object of the proceedings, can consult with
the attorney or representative if there is one, and has a
reasonable opportunity to examine and present evidence and
cross-examine witnesses.” Matter of M-A-M-, 25 I. & N. Dec.
474, 479 (BIA 2011). “When there are indicia of
incompetency, an [IJ] must take measures to determine whether
a respondent is competent to participate in proceedings.”
Id. at 480.
Contrary to Zou’s contention, the BIA did not err in
concluding that the record provided no indicia that he was
incompetent. Zou demonstrated an understanding of the nature
and purpose of his hearing, explicitly stating that he was
applying for asylum because he was persecuted under China’s
family planning policy. See id. at 479. He was able to
consult with his attorney who was present at his hearing.
See id. And he had a reasonable opportunity to present
evidence: he testified at length and demonstrated a clear
understanding of the questions posed as evidenced by the
responsiveness of his answers; and he had an opportunity to
question his witness but chose to rely on his witness’s
affidavit only. See id. Further, although Zou claimed to
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have trouble with his hearing and his response time when
confronted with inconsistencies in his evidence, he clearly
heard the questions posed given his responsive answers and he
did not hesitate in recalling facts, particularly when
reminded of the contents of his written application.
Accordingly, there were no indicia that Zou was incompetent
such that the IJ was required to take measures to determine
competency. See id. at 480.
For the foregoing reasons, the petitions for review are
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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