Zhang v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: February 26, 2018
• Docket: 17-396
• Status: Unpublished

Opinion

17-396 Zhang v. Sessions BIA Cheng, IJ A206 052 523 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 26th day of February, two thousand 5 eighteen. 6 7 PRESENT: JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MING HUI ZHANG, 14 Petitioner, 15 16 v. 17-396 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Norman Kwai Wing Wong, New York, 24 NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Linda S. 28 Wernery, Assistant Director; 29 Steven K. Uejio, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC. 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 Ming Hui Zhang, a native and citizen of the

6 People’s Republic of China, seeks review of a January 18,

7 2017, decision of the BIA affirming a June 1, 2016, decision

8 of an Immigration Judge (“IJ”) denying Zhang’s application

9 for asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Ming Hui Zhang,

11 No. A 206 052 523 (B.I.A. Jan. 18, 2017), aff’g No. A 206 052

12 523 (Immig. Ct. N.Y. City June 1, 2016). We assume the

13 parties’ familiarity with the underlying facts and procedural

14 history in this case.

15 We have reviewed both the IJ’s and BIA’s decisions “for

16 the sake of completeness.” Wangchuck v. Dep’t of Homeland

17 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable

18 standards of review are well established. See 8 U.S.C.

19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

20 66 (2d Cir. 2008).

21 The agency may, “[c]onsidering the totality of the

22 circumstances,” base an adverse credibility ruling on “the

2 1 consistency between the applicant’s or witness’s written

2 and oral statements[,] . . . the consistency of such

3 statements with other evidence of record (including the

4 reports of the Department of State on country conditions),

5 and any inaccuracies or falsehoods in such statements.”

6 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s

7 credibility determination unless . . . it is plain that no

8 reasonable fact-finder could make such an adverse

9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

10 The agency reasonably concluded that medical records

11 suggesting that Zhang’s abortion was voluntary undermined

12 her forced abortion claim. See Tu Lin v. Gonzales, 446

13 F.3d 395, 400 (2d Cir. 2006). The agency was not required

14 to accept Zhang’s argument that family planning officials

15 requested the abortion, particularly because State

16 Department reports supported the IJ’s conclusion that the

17 document presented by Zhang was the type issued to obtain

18 leave from work after a voluntary abortion. A.R. 37-38;

19 see Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

20 petitioner must do more than offer a plausible explanation

21 for his inconsistent statements to secure relief; he must

22 demonstrate that a reasonable fact-finder would be

3 1 compelled to credit his testimony.” (quotation marks

2 omitted)); Tu Lin, 446 F.3d at 400 (concluding that IJ was

3 entitled to rely on a 1998 State Department report

4 concluding that “so-called ‘abortion certificates’” are

5 actually documents “issued by hospitals upon a patient’s

6 request after a voluntary abortion . . . as evidence to

7 request 2 weeks of sick leave”); see also U.S. State Dep’t,

8 2007 China Profile of Asylum Claims and Country Conditions

9 ¶ 98 (May 2007).

10 Zhang’s inconsistencies and omissions regarding other

11 alleged harms, the family planning officials’ visits to her

12 home, the guarantee letter she was forced to sign, and her

13 loss of her work bonus, provide further support for the

14 adverse credibility ruling. See Xiu Xia Lin, 534 F.3d at

15 166 n.3 (“An inconsistency and an omission

16 are . . . functionally equivalent” for credibility

17 purposes.”).

18 These discrepancies, which call into question whether

19 Zhang’s abortion was forced or voluntary and whether she

20 faced any negative consequences for her pregnancy, provide

21 substantial evidence for the adverse credibility ruling.

22 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

4 1 167. The adverse credibility ruling is dispositive of

2 Zhang’s asylum, withholding of removal, and CAT claims,

3 which were all based on the same factual predicate. Paul

4 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

5 For the foregoing reasons, the petition for review is

6 DENIED. As we have completed our review, Zhang’s pending

7 motion for a stay of removal is DENIED as moot.

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk of Court