10-3421-ag Zhang v. Holder BIA Rocco, IJ A095 381 962 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 18th day of April, two thousand twelve. 5 6 PRESENT: 7 RALPH K. WINTER, 8 ROBERT A. KATZMANN, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _______________________________________ 12 13 JUN YING ZHANG, 14 Petitioner, 15 16 v. 10-3421-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: H. Raymond Fasano, New York, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Shelley R. Goad, Assistant 28 Director; Monica G. Antoun, Trial 29 Attorney, Office of Immigration 30 Litigation, Washington D.C. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Jun Ying Zhang, a native and citizen of
6 China, seeks review of a July 30, 2010, order of the BIA
7 affirming the September 15, 2008, decision of Immigration
8 Judge (“IJ”) Michael Rocco denying her application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Jun Ying Zhang,
11 No. A095 381 962 (B.I.A. July 30, 2010), aff’g No. A095 381
12 962 (Immig. Ct. Buffalo, N.Y. Sept. 15, 2008). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s decisions. See Yan Chen v.
17 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
18 standards of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
20 (2d Cir. 2009).
2 1 I. Past Persecution
2 In her brief, Zhang does not challenge any of the
3 specific inconsistencies cited by the agency in arriving at
4 its adverse credibility determination. Accordingly, we
5 address only whether the agency erred in relying on those
6 inconsistencies given that her testimony was internally
7 consistent and her husband, Jun Xin Pan, admitted to having
8 testified untruthfully during his own asylum proceedings.
9 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008)
10 In Bao Zhu Zhu v. Gonzales, we concluded that
11 substantial evidence did not support an IJ’s adverse
12 credibility determination as it was based primarily on
13 discrepancies between the petitioner’s account of her forced
14 sterilization and her husband’s account in earlier asylum
15 proceedings, finding the IJ’s decision “speculative” and
16 “arbitrary” because he concluded, without explanation, that
17 the husband “was telling the truth . . . and that therefore
18 [petitioner] was not.” 460 F.3d 426, 431-33 (2d Cir. 2006).
19 The present case is distinguishable from Bao Zhu Zhu
20 because the BIA found that the discrepant accounts Zhang and
21 Pan offered “str[uck] at the heart of [Zhang]’s claim that
22 she underwent a forcible abortion in China,” and concluded
3 1 that neither petitioner had provided truthful and reliable
2 testimony. Furthermore, unlike Bao, Zhang ultimately
3 admitted that she was aware that Pan had testified
4 untruthfully during his asylum proceedings but initially
5 failed to admit that knowledge during her testimony before
6 the IJ, first asserting that she did not know what her
7 husband had said, then stating that he was “mistaken.”
8 Finally, unlike in Bao Zhu Zhu, both the BIA and the IJ
9 considered Pan’s affidavit, in which he asserted that he had
10 filed an asylum application containing misrepresentations
11 and testified untruthfully because he received and followed
12 “a lot of bad advice after coming to the United States,” but
13 reasonably determined that his explanation was unconvincing
14 given that: (1) he had an opportunity to correct any
15 misrepresentations during his hearing but failed to do so;
16 and (2) he had filed an “Amended Personal Affidavit,”
17 seeking to correct untruthful information in his asylum
18 application, which also contained material
19 misrepresentations. See Majidi v. Gonzales, 430 F.3d 77,
20 80-81 (2d Cir. 2005) (holding that the agency need not
21 credit an applicant’s explanations for inconsistent
22 testimony unless those explanations would compel a
23 reasonable fact-finder to do so). The agency also
4 1 reasonably determined that Pan’s admitted misrepresentations
2 cast doubt on the truth of the underlying basis for Zhang’s
3 claim, i.e. her alleged forcible abortion, with the BIA
4 approving of the IJ’s determination that it was “implausible
5 that a person with a purportedly legitimate factual basis
6 for relief would assert the fact of his wife’s forcible
7 abortion, but fabricate the underlying details.” Zhang, No.
8 A095 381 962, at 3. See Matter of O-D-, 21 I. & N. Dec.
9 1079, 1083 (BIA 1998) (“Ordinarily, it is reasonable to
10 infer that a respondent with a legitimate claim does not
11 usually find it necessary to invent or fabricate documents
12 in order to establish asylum eligibility”). Therefore,
13 because the agency’s decision was not “arbitrary,” but
14 instead relied on discrepancies between Zhang’s and Pan’s
15 version of events to find that both individuals failed to
16 testify credibly, substantial evidence supports the agency’s
17 adverse credibility determination. Cf. Bao Zhu Zhu, 460
18 F.3d at 431-33.
19 The agency also did not err in finding that the
20 evidence Zhang submitted was insufficient to rehabilitate
21 her otherwise incredible testimony. Specifically, the BIA
22 reasonably afforded little probative weight to Zhang’s
23 United States medical records because they were “non-
5 1 contemporaneous” and were obtained for the filing of her
2 application, see Xiao Ji Chen v. U.S. Dep’t of Justice, 434
3 F.3d 144, 163-64 (2d Cir. 2006) (holding that the weight
4 afforded to the evidence lies largely within the agency’s
5 discretion), on reh’g,
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10-3421-ag Zhang v. Holder BIA Rocco, IJ A095 381 962 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 18th day of April, two thousand twelve. 5 6 PRESENT: 7 RALPH K. WINTER, 8 ROBERT A. KATZMANN, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _______________________________________ 12 13 JUN YING ZHANG, 14 Petitioner, 15 16 v. 10-3421-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: H. Raymond Fasano, New York, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Shelley R. Goad, Assistant 28 Director; Monica G. Antoun, Trial 29 Attorney, Office of Immigration 30 Litigation, Washington D.C. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Jun Ying Zhang, a native and citizen of
6 China, seeks review of a July 30, 2010, order of the BIA
7 affirming the September 15, 2008, decision of Immigration
8 Judge (“IJ”) Michael Rocco denying her application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Jun Ying Zhang,
11 No. A095 381 962 (B.I.A. July 30, 2010), aff’g No. A095 381
12 962 (Immig. Ct. Buffalo, N.Y. Sept. 15, 2008). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s decisions. See Yan Chen v.
17 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
18 standards of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
20 (2d Cir. 2009).
2 1 I. Past Persecution
2 In her brief, Zhang does not challenge any of the
3 specific inconsistencies cited by the agency in arriving at
4 its adverse credibility determination. Accordingly, we
5 address only whether the agency erred in relying on those
6 inconsistencies given that her testimony was internally
7 consistent and her husband, Jun Xin Pan, admitted to having
8 testified untruthfully during his own asylum proceedings.
9 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008)
10 In Bao Zhu Zhu v. Gonzales, we concluded that
11 substantial evidence did not support an IJ’s adverse
12 credibility determination as it was based primarily on
13 discrepancies between the petitioner’s account of her forced
14 sterilization and her husband’s account in earlier asylum
15 proceedings, finding the IJ’s decision “speculative” and
16 “arbitrary” because he concluded, without explanation, that
17 the husband “was telling the truth . . . and that therefore
18 [petitioner] was not.” 460 F.3d 426, 431-33 (2d Cir. 2006).
19 The present case is distinguishable from Bao Zhu Zhu
20 because the BIA found that the discrepant accounts Zhang and
21 Pan offered “str[uck] at the heart of [Zhang]’s claim that
22 she underwent a forcible abortion in China,” and concluded
3 1 that neither petitioner had provided truthful and reliable
2 testimony. Furthermore, unlike Bao, Zhang ultimately
3 admitted that she was aware that Pan had testified
4 untruthfully during his asylum proceedings but initially
5 failed to admit that knowledge during her testimony before
6 the IJ, first asserting that she did not know what her
7 husband had said, then stating that he was “mistaken.”
8 Finally, unlike in Bao Zhu Zhu, both the BIA and the IJ
9 considered Pan’s affidavit, in which he asserted that he had
10 filed an asylum application containing misrepresentations
11 and testified untruthfully because he received and followed
12 “a lot of bad advice after coming to the United States,” but
13 reasonably determined that his explanation was unconvincing
14 given that: (1) he had an opportunity to correct any
15 misrepresentations during his hearing but failed to do so;
16 and (2) he had filed an “Amended Personal Affidavit,”
17 seeking to correct untruthful information in his asylum
18 application, which also contained material
19 misrepresentations. See Majidi v. Gonzales, 430 F.3d 77,
20 80-81 (2d Cir. 2005) (holding that the agency need not
21 credit an applicant’s explanations for inconsistent
22 testimony unless those explanations would compel a
23 reasonable fact-finder to do so). The agency also
4 1 reasonably determined that Pan’s admitted misrepresentations
2 cast doubt on the truth of the underlying basis for Zhang’s
3 claim, i.e. her alleged forcible abortion, with the BIA
4 approving of the IJ’s determination that it was “implausible
5 that a person with a purportedly legitimate factual basis
6 for relief would assert the fact of his wife’s forcible
7 abortion, but fabricate the underlying details.” Zhang, No.
8 A095 381 962, at 3. See Matter of O-D-, 21 I. & N. Dec.
9 1079, 1083 (BIA 1998) (“Ordinarily, it is reasonable to
10 infer that a respondent with a legitimate claim does not
11 usually find it necessary to invent or fabricate documents
12 in order to establish asylum eligibility”). Therefore,
13 because the agency’s decision was not “arbitrary,” but
14 instead relied on discrepancies between Zhang’s and Pan’s
15 version of events to find that both individuals failed to
16 testify credibly, substantial evidence supports the agency’s
17 adverse credibility determination. Cf. Bao Zhu Zhu, 460
18 F.3d at 431-33.
19 The agency also did not err in finding that the
20 evidence Zhang submitted was insufficient to rehabilitate
21 her otherwise incredible testimony. Specifically, the BIA
22 reasonably afforded little probative weight to Zhang’s
23 United States medical records because they were “non-
5 1 contemporaneous” and were obtained for the filing of her
2 application, see Xiao Ji Chen v. U.S. Dep’t of Justice, 434
3 F.3d 144, 163-64 (2d Cir. 2006) (holding that the weight
4 afforded to the evidence lies largely within the agency’s
5 discretion), on reh’g, 471 F.3d 315 (2d Cir. 2006), and the
6 unauthenticated abortion certificate did not demonstrate
7 that any procedure she may have undergone was involuntary,
8 see Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006)
9 (holding that the IJ properly relied on background evidence
10 in the record to discount the applicant’s claim that an
11 abortion certificate evidenced a forced abortion because
12 “so-called ‘abortion certificates’ are most likely doctors’
13 excuse-letters for workers who undergo abortion
14 voluntarily”).
15 II. Well-Founded Fear
16 Absent a showing of past persecution, Zhang was
17 required to establish an objectively reasonable fear of
18 future persecution. See 8 C.F.R. § 208.13(b). Her
19 arguments regarding her alleged fear of forced sterilization
20 on account of the birth of her two children, one in China
21 and one in the United States, are foreclosed by our decision
22 in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008).
6 1 Although Zhang devotes a significant portion of her brief to
2 arguing that the BIA’s decision in Matter of J-W-S-, 24 I. &
3 N. Dec. 185 (BIA 2007), was wrongly decided, we have
4 previously considered Matter of J-W-S- and found no legal
5 error in its evidentiary framework. See Jian Hui Shao, 546
6 F.3d at 163. Furthermore, Zhang submitted no individualized
7 evidence indicating that she would be personally targeted
8 for forcible sterilization, and the background evidence she
9 submitted is not distinguishable from the evidence addressed
10 in Jian Hui Shao. Id. at 164-72. Although Zhang points to
11 her testimony regarding her alleged abortion as evidence
12 that she will suffer similar mistreatment in the future,
13 that testimony is of negligible probative value because she
14 was found not credible. See Paul v. Gonzales, 444 F.3d 148,
15 154 (2d Cir. 2006) (holding that “an applicant may prevail
16 on a theory of future persecution despite an IJ’s adverse
17 credibility ruling as to past persecution, so long as the
18 factual predicate of the applicant’s claim of future
19 persecution is independent of the testimony that the IJ
20 found not to be credible”) (emphasis omitted).
21 Finally, we grant the government’s motion to strike the
22 extra-record evidence cited in Zhang’s brief, as it was not
23 contained in the administrative record before the agency.
24 See 8 U.S.C. § 1252(b)(4)(A).
7 1 For the foregoing reasons, the government’s motion to
2 strike is GRANTED and the petition for review is DENIED. As
3 we have completed our review, any stay of removal that the
4 Court previously granted in this petition is VACATED, and
5 any pending motion for a stay of removal in this petition is
6 DISMISSED as moot. Any pending request for oral argument in
7 this petition is DENIED in accordance with Federal Rule of
8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
9 34.1(b).
10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13