21-6088 Zhang v. Garland BIA Navarro, IJ A206 999 170 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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 12th day of June, two thousand twenty- 5 three. 6 7 PRESENT: 8 JOHN M. WALKER, JR., 9 RAYMOND J. LOHIER, JR., 10 MYRNA PÉREZ, 11 Circuit Judges. 12 _____________________________________ 13 14 CHAO ZHANG, 15 Petitioner, 16 17 v. 21-6088 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jiyuan Zhang, Esq., J. Zhang and 25 Associates, P.C., Flushing, NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; Mary Jane 1 Candaux, Assistant Director; 2 Stephen Finn, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Chao Zhang, a native and citizen of the
11 People’s Republic of China, seeks review of a January 27,
12 2021, decision of the BIA affirming a May 22, 2018, decision
13 of an Immigration Judge (“IJ”) denying his application for
14 asylum, withholding of removal, and protection under the
15 Convention Against Torture (“CAT”). In re Chao Zhang, No.
16 A206 999 170 (B.I.A. Jan. 27, 2021), aff’g No. A206 999 170
17 (Immig. Ct. N.Y. City May 22, 2018). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 We have reviewed both the IJ’s and the BIA’s decisions
20 “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
22 adverse credibility determination “under the substantial
23 evidence standard.” Hong Fei Gao v. Sessions, 891 F.3d 67,
24 76 (2d Cir. 2018); see 8 U.S.C. § 1252(b)(4)(B) (“[T]he 2 1 administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the
3 contrary.”). We reverse an IJ’s credibility determination
4 only if “it is plain that no reasonable fact-finder could
5 make such an adverse credibility ruling.” Xiu Xia Lin v.
6 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). And, a fact-
7 finder “may base a credibility determination on . . . the
8 inherent plausibility of the applicant’s . . . account, the
9 consistency between the applicant’s . . . written and oral
10 statements . . . , the internal consistency of each such
11 statement, [and] the consistency of such statements with
12 other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii).
13 In this case, substantial evidence supports the adverse
14 credibility determination given that Zhang omitted his only
15 alleged physical harm (arrests and beatings for protecting
16 Falun Gong practitioners), his ex-wife’s forced abortion, and
17 his practice of Buddhism in China from his application,
18 written statement, and direct testimony, and his
19 corroborating evidence did not rehabilitate his testimony.
20 The agency may rely on both omissions and inconsistencies
21 in making an adverse credibility determination, see Xiu Xia
3 1 Lin, 534 F.3d at 167, but it must “evaluate each inconsistency
2 or omission in light of ‘the totality of the circumstances,
3 and all relevant factors,’” Hong Fei Gao, 891 F.3d at 79
4 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Zhang’s omissions
5 are probative of untruthfulness given that he discussed less
6 relevant facts in his written statement and on direct
7 examination. For example, he included his aunts’ forced
8 abortions and that family planning officials “humiliated” him
9 and his former wife, but he did not include his ex-wife’s
10 forced abortion. He also mentioned that he feared that
11 authorities would discover his aid to Falun Gong
12 practitioners, but he did not disclose that he was arrested
13 and beaten for hiding them. As we previously observed, “a
14 fact later asserted by a petitioner but omitted from his
15 earlier statement can be of such importance to the purpose of
16 the earlier statement that its omission makes the two tellings
17 inconsistent and legitimately casts doubt on the veracity of
18 the later addition.” Singh v. Garland, 6 F.4th 418, 428 (2d
19 Cir. 2021). Here, Zhang’s allegation on cross-examination
20 that he was arrested, detained, and beaten three or four times
21 by the Chinese government was essential to his asylum claim,
4 1 as it was his only allegation of past persecution. The agency
2 was not required to accept Zhang’s explanation that he omitted
3 these facts because he forgot about his ex-wife’s abortion
4 and did not think the other facts were worth including. See
5 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
6 petitioner must do more than offer a plausible explanation
7 for his inconsistent statements to secure relief; he must
8 demonstrate that a reasonable fact-finder would be compelled
9 to credit his testimony.” (quotation marks omitted)).
10 Zhang’s documentary evidence did not rehabilitate his
11 claim. “An applicant’s failure to corroborate
12 his . . . testimony may bear on credibility, because the
13 absence of corroboration in general makes an applicant unable
14 to rehabilitate testimony that has already been called into
15 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
16 2007). The letters Zhang submitted do not resolve the
17 discrepancies, and Zhang did not have any medical records to
18 corroborate either his claim of receiving a medical check-up
19 following his purported first police beating or that his ex-
20 wife was forced to have an abortion, as he claimed.
21 In sum, Zhang’s omission of critical facts as well as
5 1 the lack of corroboration of these facts provide substantial
2 evidence for the adverse credibility determination. This
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21-6088 Zhang v. Garland BIA Navarro, IJ A206 999 170 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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 12th day of June, two thousand twenty- 5 three. 6 7 PRESENT: 8 JOHN M. WALKER, JR., 9 RAYMOND J. LOHIER, JR., 10 MYRNA PÉREZ, 11 Circuit Judges. 12 _____________________________________ 13 14 CHAO ZHANG, 15 Petitioner, 16 17 v. 21-6088 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jiyuan Zhang, Esq., J. Zhang and 25 Associates, P.C., Flushing, NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; Mary Jane 1 Candaux, Assistant Director; 2 Stephen Finn, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Chao Zhang, a native and citizen of the
11 People’s Republic of China, seeks review of a January 27,
12 2021, decision of the BIA affirming a May 22, 2018, decision
13 of an Immigration Judge (“IJ”) denying his application for
14 asylum, withholding of removal, and protection under the
15 Convention Against Torture (“CAT”). In re Chao Zhang, No.
16 A206 999 170 (B.I.A. Jan. 27, 2021), aff’g No. A206 999 170
17 (Immig. Ct. N.Y. City May 22, 2018). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 We have reviewed both the IJ’s and the BIA’s decisions
20 “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
22 adverse credibility determination “under the substantial
23 evidence standard.” Hong Fei Gao v. Sessions, 891 F.3d 67,
24 76 (2d Cir. 2018); see 8 U.S.C. § 1252(b)(4)(B) (“[T]he 2 1 administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the
3 contrary.”). We reverse an IJ’s credibility determination
4 only if “it is plain that no reasonable fact-finder could
5 make such an adverse credibility ruling.” Xiu Xia Lin v.
6 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). And, a fact-
7 finder “may base a credibility determination on . . . the
8 inherent plausibility of the applicant’s . . . account, the
9 consistency between the applicant’s . . . written and oral
10 statements . . . , the internal consistency of each such
11 statement, [and] the consistency of such statements with
12 other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii).
13 In this case, substantial evidence supports the adverse
14 credibility determination given that Zhang omitted his only
15 alleged physical harm (arrests and beatings for protecting
16 Falun Gong practitioners), his ex-wife’s forced abortion, and
17 his practice of Buddhism in China from his application,
18 written statement, and direct testimony, and his
19 corroborating evidence did not rehabilitate his testimony.
20 The agency may rely on both omissions and inconsistencies
21 in making an adverse credibility determination, see Xiu Xia
3 1 Lin, 534 F.3d at 167, but it must “evaluate each inconsistency
2 or omission in light of ‘the totality of the circumstances,
3 and all relevant factors,’” Hong Fei Gao, 891 F.3d at 79
4 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Zhang’s omissions
5 are probative of untruthfulness given that he discussed less
6 relevant facts in his written statement and on direct
7 examination. For example, he included his aunts’ forced
8 abortions and that family planning officials “humiliated” him
9 and his former wife, but he did not include his ex-wife’s
10 forced abortion. He also mentioned that he feared that
11 authorities would discover his aid to Falun Gong
12 practitioners, but he did not disclose that he was arrested
13 and beaten for hiding them. As we previously observed, “a
14 fact later asserted by a petitioner but omitted from his
15 earlier statement can be of such importance to the purpose of
16 the earlier statement that its omission makes the two tellings
17 inconsistent and legitimately casts doubt on the veracity of
18 the later addition.” Singh v. Garland, 6 F.4th 418, 428 (2d
19 Cir. 2021). Here, Zhang’s allegation on cross-examination
20 that he was arrested, detained, and beaten three or four times
21 by the Chinese government was essential to his asylum claim,
4 1 as it was his only allegation of past persecution. The agency
2 was not required to accept Zhang’s explanation that he omitted
3 these facts because he forgot about his ex-wife’s abortion
4 and did not think the other facts were worth including. See
5 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
6 petitioner must do more than offer a plausible explanation
7 for his inconsistent statements to secure relief; he must
8 demonstrate that a reasonable fact-finder would be compelled
9 to credit his testimony.” (quotation marks omitted)).
10 Zhang’s documentary evidence did not rehabilitate his
11 claim. “An applicant’s failure to corroborate
12 his . . . testimony may bear on credibility, because the
13 absence of corroboration in general makes an applicant unable
14 to rehabilitate testimony that has already been called into
15 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
16 2007). The letters Zhang submitted do not resolve the
17 discrepancies, and Zhang did not have any medical records to
18 corroborate either his claim of receiving a medical check-up
19 following his purported first police beating or that his ex-
20 wife was forced to have an abortion, as he claimed.
21 In sum, Zhang’s omission of critical facts as well as
5 1 the lack of corroboration of these facts provide substantial
2 evidence for the adverse credibility determination. This
3 adverse credibility determination is dispositive of asylum,
4 withholding of removal, and CAT relief because all three forms
5 of relief are based on the same discredited factual predicate.
6 See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
7 For the foregoing reasons, the petition for review is
8 DENIED. All pending motions and applications are DENIED and
9 stays VACATED.
10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court 13