Yiying Zhang v. Garland

Opinion

19-3420 Yiying Zhang v. Garland BIA

Cassin, IJ

A200 695 703

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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 17th day of March, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 RICHARD J. SULLIVAN, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 YIYING ZHANG, 14 Petitioner, 15 16 v. 19-3420 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Troy Nader Moslemi, Flushing, NY. 24 25 FOR RESPONDENT: Gerard M. Alexander, Trial 26 Attorney, (Linda S. Wernery, 27 Assistant Director, Office of 28 Immigration Litigation, on the

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1 brief), for Brian Boynton, Acting 2 Assistant Attorney General, Civil 3 Division United States Department 4 of Justice, Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Yiying Zhang, a native and citizen of the 10 People’s Republic of China, seeks review of a September 30, 11 2019 decision of the BIA affirming a February 15, 2018 12 decision of an Immigration Judge (“IJ”) denying asylum, 13 withholding of removal, and protection under the Convention 14 Against Torture (“CAT”). In re Yiying Zhang, No. A 200 695 15 703 (B.I.A. Sept. 30, 2019), aff’g No. A 200 695 703 (Immig. 16 Ct. N.Y.C. Feb. 15, 2018). We assume the parties’ 17 familiarity with the underlying facts and procedural history. 18 We have reviewed the IJ’s decision as supplemented by 19 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 20 Cir. 2005). We review the adverse credibility determination 21 for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong 22 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 23 “Considering the totality of the circumstances, and all

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1 relevant factors, a trier of fact may base a credibility 2 determination on the demeanor, candor, or responsiveness of 3 the applicant. . . , the consistency between the applicant’s 4 or witness’s written and oral statements . . . , the internal 5 consistency of each such statement, [and] the consistency of 6 such statements with other evidence of record . . . without 7 regard to whether an inconsistency, inaccuracy, or falsehood 8 goes to the heart of the applicant’s claim.” 8 U.S.C. 9 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 10 determination unless, from the totality of the circumstances, 11 it is plain that no reasonable fact-finder could make such an 12 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 13 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d 14 at 76. The agency’s determination that Zhang was not 15 credible as to her claims that she was detained and fined for 16 spreading her Christian religion and forced to have an 17 abortion under China’s family planning policy is supported by 18 substantial evidence. 19 As an initial matter, the agency reasonably relied on 20 Zhang’s statements at her airport and credible fear 21 interviews. We examine reliance on such interviews “with

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1 care,” but where, as here, the interview records contain 2 sufficient indicia of reliability, they may be considered. 3 Ming Zhang v. Holder, 585 F.3d 715, 724–25 (2d Cir. 2009). 4 Zhang does not dispute that the credible fear interview bears 5 indicia of reliability, and we conclude that the airport 6 interview also was sufficiently reliable because the record 7 of the airport interview “is typewritten, signed by 8 petitioner, and initialed by her on each page” and “contains 9 no indication that the alien was reluctant to reveal 10 information or did not understand English or the translations 11 provided by the interpreter.” Id. at 721–22 (cleaned up). 12 Given the reliability of these records, the agency 13 appropriately gave considerable weight to Zhang’s omission of 14 her family planning policy claim at both her airport and 15 credible fear interviews. See id. at 726 (upholding adverse 16 credibility determination based on applicant’s failure to 17 mention forced abortions at both airport and credible fear 18 interviews). At her credible fear interview, Zhang was asked 19 several open-ended questions about why she sought protection 20 in the United States, including whether she had “ever been 21 mistreated” by anyone in China. It is irrelevant whether

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1 Zhang knew that her forced abortion could be the basis of an 2 asylum claim at this time because she was not asked whether 3 she had a legally cognizable claim; she was asked general 4 questions about mistreatment and her reasons for fearing 5 return to China and expressed fear only of being arrested, 6 detained, and fined for spreading her religious beliefs. 7 Inconsistencies in Zhang’s own statements and between 8 her testimony and that of her witnesses further support the 9 adverse credibility determination. See 8 U.S.C. 10 § 1158(b)(1)(B)(iii). Zhang made an affirmative statement 11 at her airport interview that she was baptized in China, but 12 later testified that she was baptized only in the United 13 States. In addition, Zhang’s testimony about the days she 14 went to the church differed from the testimony of her church 15 witness, and the IJ was not compelled to credit Zhang’s 16 explanation that she mentioned only the days she attended 17 services, not the days she went to the church to clean. See 18 Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005) (“A 19 petitioner must do more than offer a plausible explanation 20 for his inconsistent statements to secure relief; he must 21 demonstrate that a reasonable fact-finder would be compelled

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1 to credit his testimony.” (internal quotation marks and 2 citation omitted)). And Zhang and her husband gave 3 inconsistent testimony about where her husband and son lived. 4 The omission and inconsistencies constitute substantial 5 evidence for the adverse credibility determination. See Hong 6 Fei Gao, 891 F.3d at 76; Xiu Xia Lin, 534 F.3d at 165–66. 7 That determination is dispositive of Zhang’s asylum, 8 withholding of removal, and CAT claims because they were based 9 on the same factual predicate. See Paul v. Gonzales, 444 10 F.3d 148, 156–57 (2d Cir. 2006). We do not reach Zhang’s 11 arguments regarding her son because she did not include him 12 on appeal to the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 13 480 F.3d 104, 117-25 (2d Cir. 2007) (holding that we generally 14 require petitioner to exhaust all issues before the BIA). 15 For the foregoing reasons, the petition for review is 16 DENIED. All pending motions and applications are DENIED and 17 stays VACATED.

18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court