Xue Jie Zhang v. Lynch

659 F. App'x 62
CourtCourt of Appeals for the Second Circuit
DecidedOctober 4, 2016
Docket15-351
StatusUnpublished

This text of 659 F. App'x 62 (Xue Jie Zhang v. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Xue Jie Zhang v. Lynch, 659 F. App'x 62 (2d Cir. 2016).

Opinion

SUMMARY ORDER

Petitioner Xue Jie Zhang, a native and citizen of China, sebks review of a January 9, 2015, decision of thé BIA affirming a December 6, 2012, decision of an Immigration Judge (“IJ”) denying Zhang’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xue Jie Zhang, No. A099 895 703 (B.I.A. Jan. 9, 2015), aff'g No. A099 895 703 (Immig. Ct. N.Y. City Dec. 6, 2012). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Zhang does not challenge the agency’s denial of his asylum application as untimely, Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998), and we generally lack jurisdiction to review that finding, 8 U.S.C. §§ 1158(a)(2), 1252(a)(2)(D) (agency’s finding that asylum application was filed more than one year after arrival is not subject to review except as to constitutional claims and questions of law). Because the BIA did not reach the IJ’s conclusion that Zhang failed to meet his burden to demonstrate a likelihood of future harm, our review is further limited to the adverse credibility determination. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005) (holding that where the BIA affirms in only some respects, we review the IJ’s decision as modified by the BIA’s decision). As discussed below, the agency’s adverse credibility determination is dispos-itive of both withholding of removal and CAT relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). We review credibility determinations under a substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).

Under the REAL ID Act of 2005, the agency may, in light of “the totality of the circumstances,” base an adverse credibility determination on an asylum applicant’s “demeanor, candor, or responsiveness,” the plausibility of his account, and - inconsistencies in his statements, “without regard to -whether” those inconsistencies go “to the heart of the applicant’s claim.” 8 U.S.C. §§ 1158(b)(l)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 165. Under the “substantial evidence” standard of review, we “defer ... to an IJ’s credibility deter *64 mination 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, 534 F.3d at 167.

The IJ’s decision makes sufficiently clear that it was deciding the credibility of Zhang’s testimony. The IJ stated that Zhang’s “credibility overall is affected by the explanation he has given for the lack of agreement between his testimony of attending Church of Grace since February 2009 and the letter issued by the church.” He further found that “there were issues raised concerning the respondent’s credibility in general from” Zhang’s two visa applications. He observed that Zhang’s was a case in which the lack of corroboration “raises issues about credibility”—although credibility and corroboration are often treated as distinct, here they were intertwined. Diallo v. I.N.S., 232 F.3d 279, 290 (2d Cir.2000) (in making a credibility determination, “the presence of corroborating evidence may be relevant”).

At bottom, the IJ doubted that Zhang is a practicing Christian. That finding rests on substantial evidence. Although Zhang testified that he began attending the Church of Grace in February 2009, his only documentary evidence of attendance was a letter stating that, according to the registration book, Zhang started attending services on October 31, 2010. When asked about the period between February 2009 and October 2010, Zhang explained that he did not write his name in the attendance book until October 2010 because he did not know he needed to “put down” his name. The IJ was not compelled to credit this explanation. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (explaining that the agency is not required to credit an explanation that is merely plausible or possible). Moreover, the IJ reasonably deemed the timing to be suspicious: Zhang had submitted his asylum application in June 2010, months before he began documenting his attendance.

Other aspects of Zhang’s testimony cast doubt on his practice of Christianity. Zhang testified that while living in Roanoke, Virginia for two years, he commuted to the Church of Grace in New York for services “once a week” or sometimes “once every two or three weeks.” When asked why he did not attend services in Roanoke, Zhang responded that his employer told him there were no Chinese churches nearby. The IJ reasonably rejected this explanation as implausible. Majidi, 430 F.3d at 80. “The point at which a finding that testimony is implausible ceases to be sustainable as reasonable and, instead, is justifiably labeled ‘speculation,’ in the absence of an IJ’s adequate explanation, cannot be located with precision,” but we uphold a finding unless we are “left with the definite and firm conviction that a mistake has been committed.” Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006) (internal citation and quotation marks omitted). Here, the IJ’s question was grounded in common sense: why would a devout Christian travel from Roanoke to New York for services simply because it was “familiar” to him? The IJ justifiably found that even if one credited the explanation, it undercut Zhang’s credibility further: as the IJ observed, Zhang had no documentary evidence, in the form of bus tickets and the like, to corroborate this explanation. “[T]he 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).

Zhang’s witness list did not fill that gap. He called none of his 1,000 fellow parishioners from Church of Grace to testify; .he explained that “some of them do not have legal status”; but the explanation was par *65 tial at best, and the IJ was not compelled to accept it. The agency also reasonably found that Zhang’s credibility was not rehabilitated by his uncle’s testimony that he went to church with Zhang “once,” especially since Zhang had asked him to go in order “to be his witness.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
659 F. App'x 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xue-jie-zhang-v-lynch-ca2-2016.