17-1490 Zhang v. Whitaker BIA Gordon-Uruakpa, IJ A087 986 601 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 22nd day of January, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 BARRINGTON D. PARKER, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 JIANZHI ZHANG, 14 Petitioner, 15 16 v. 17-1490 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jianzhi Zhang, pro se, Far 24 Rockaway, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Paul Fiorino, 28 Senior Litigation Counsel; John M. 29 McAdams, Jr., Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 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 Jianzhi Zhang, a native and citizen of the
6 People’s Republic of China, seeks review of an April 12, 2017,
7 decision of the BIA affirming an August 4, 2016, decision of
8 an Immigration Judge (“IJ”) denying Zhang’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Jianzhi Zhang, No.
11 A 087 986 601 (B.I.A. Apr. 12, 2017), aff’g No. A 087 986 601
12 (Immig. Ct. N.Y. City Aug. 4, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed the IJ’s decision as supplemented by
16 the BIA. Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007).
17 We review adverse credibility determinations under a
18 substantial evidence standard. See Xiu Xia Lin v. Mukasey,
19 534 F.3d 162, 165-66 (2d Cir. 2008). “Considering the
20 totality of the circumstances, . . . a trier of fact may base
21 a credibility determination on . . . the consistency between
22 the applicant’s or witness’s written and oral statements
23 . . . the internal consistency of each such statement, the 2 1 consistency of such statements with other evidence of record
2 . . . and any inaccuracies or falsehoods in such statements
3 . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
4 an IJ’s credibility determination unless . . . it is plain
5 that no reasonable fact-finder could make such an adverse
6 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. As
7 discussed below, substantial evidence supports the agency’s
8 determination that Zhang was not credible.
9 The agency reasonably relied on multiple inconsistencies
10 between Zhang’s testimony and application regarding the
11 events in China. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
12 Lin, 534 F.3d at 166-67. His statements were inconsistent
13 as to the length of his interrogation during the initial
14 arrest, the period of time that passed between his first and
15 second arrests, and whether he and his wife began their bible
16 study group before or after the university officials warned
17 them not to proselytize on campus.1 The IJ was not compelled
18 to accept Zhang’s explanation that the passage of time
19 affected his memory of the events given the level of detail
1 Although we agree with Zhang that the IJ erred in finding an inconsistency between Zhang’s testimony and application regarding the government-sanctioned church he attended in China, the error does not require remand given the other inconsistencies. See Lianping Li v. Lynch, 839 F.3d 144, 149-50 (2d Cir. 2016).
3 1 and specific dates he included in his application. See
2 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A
3 petitioner must do more than offer a plausible explanation
4 for his inconsistent statements to secure relief; he must
5 demonstrate that a reasonable fact-finder would be compelled
6 to credit his testimony.” (quotation marks omitted)).
7 The inconsistencies between Zhang’s and his wife’s
8 testimony regarding whether he was arrested in China and
9 whether he attended church in the United States further
10 support the agency’s determination that Zhang was not
11 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii). Zhang’s
12 wife’s testimony that Zhang was never arrested in China
13 directly contradicts the main basis of Zhang’s claim of past
14 persecution. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446
15 F.3d 289, 295 (2d Cir. 2006) (even one material inconsistency
16 may provide substantial evidence for adverse credibility
17 determination). The agency was not compelled to accept
18 Zhang’s explanation that his wife meant only that he was never
19 arrested for criminal activity because Zhang’s wife
20 specifically denied that Zhang was ever arrested while
21 teaching on campus or for hosting the bible study sessions,
22 see Majidi, 430 F.3d at 80-81. Zhang has provided no support
23 for his allegation that his wife’s testimony was 4 1 misinterpreted, in that he has not identified any errors and
2 his wife stated that she understood the interpreter.
3 The agency also reasonably relied on discrepancies
4 regarding Zhang’s New York church attendance. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii). Zhang’s failure to attend church in
6 the United States called into question whether he was a
7 practicing Christian and undermined his allegations that he
8 risked arrest to practice Christianity in China. See Wensheng
9 Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (“It is well
10 settled that, in assessing the credibility of an asylum
11 applicant’s testimony, an IJ is entitled to consider whether
12 the applicant’s story is inherently implausible.”); Siewe v.
13 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false
14 document or a single instance of false testimony may (if
15 attributable to the petitioner) infect the balance of the
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17-1490 Zhang v. Whitaker BIA Gordon-Uruakpa, IJ A087 986 601 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 22nd day of January, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 BARRINGTON D. PARKER, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 JIANZHI ZHANG, 14 Petitioner, 15 16 v. 17-1490 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jianzhi Zhang, pro se, Far 24 Rockaway, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Paul Fiorino, 28 Senior Litigation Counsel; John M. 29 McAdams, Jr., Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 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 Jianzhi Zhang, a native and citizen of the
6 People’s Republic of China, seeks review of an April 12, 2017,
7 decision of the BIA affirming an August 4, 2016, decision of
8 an Immigration Judge (“IJ”) denying Zhang’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Jianzhi Zhang, No.
11 A 087 986 601 (B.I.A. Apr. 12, 2017), aff’g No. A 087 986 601
12 (Immig. Ct. N.Y. City Aug. 4, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We have reviewed the IJ’s decision as supplemented by
16 the BIA. Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007).
17 We review adverse credibility determinations under a
18 substantial evidence standard. See Xiu Xia Lin v. Mukasey,
19 534 F.3d 162, 165-66 (2d Cir. 2008). “Considering the
20 totality of the circumstances, . . . a trier of fact may base
21 a credibility determination on . . . the consistency between
22 the applicant’s or witness’s written and oral statements
23 . . . the internal consistency of each such statement, the 2 1 consistency of such statements with other evidence of record
2 . . . and any inaccuracies or falsehoods in such statements
3 . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
4 an IJ’s credibility determination unless . . . it is plain
5 that no reasonable fact-finder could make such an adverse
6 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. As
7 discussed below, substantial evidence supports the agency’s
8 determination that Zhang was not credible.
9 The agency reasonably relied on multiple inconsistencies
10 between Zhang’s testimony and application regarding the
11 events in China. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
12 Lin, 534 F.3d at 166-67. His statements were inconsistent
13 as to the length of his interrogation during the initial
14 arrest, the period of time that passed between his first and
15 second arrests, and whether he and his wife began their bible
16 study group before or after the university officials warned
17 them not to proselytize on campus.1 The IJ was not compelled
18 to accept Zhang’s explanation that the passage of time
19 affected his memory of the events given the level of detail
1 Although we agree with Zhang that the IJ erred in finding an inconsistency between Zhang’s testimony and application regarding the government-sanctioned church he attended in China, the error does not require remand given the other inconsistencies. See Lianping Li v. Lynch, 839 F.3d 144, 149-50 (2d Cir. 2016).
3 1 and specific dates he included in his application. See
2 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A
3 petitioner must do more than offer a plausible explanation
4 for his inconsistent statements to secure relief; he must
5 demonstrate that a reasonable fact-finder would be compelled
6 to credit his testimony.” (quotation marks omitted)).
7 The inconsistencies between Zhang’s and his wife’s
8 testimony regarding whether he was arrested in China and
9 whether he attended church in the United States further
10 support the agency’s determination that Zhang was not
11 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii). Zhang’s
12 wife’s testimony that Zhang was never arrested in China
13 directly contradicts the main basis of Zhang’s claim of past
14 persecution. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446
15 F.3d 289, 295 (2d Cir. 2006) (even one material inconsistency
16 may provide substantial evidence for adverse credibility
17 determination). The agency was not compelled to accept
18 Zhang’s explanation that his wife meant only that he was never
19 arrested for criminal activity because Zhang’s wife
20 specifically denied that Zhang was ever arrested while
21 teaching on campus or for hosting the bible study sessions,
22 see Majidi, 430 F.3d at 80-81. Zhang has provided no support
23 for his allegation that his wife’s testimony was 4 1 misinterpreted, in that he has not identified any errors and
2 his wife stated that she understood the interpreter.
3 The agency also reasonably relied on discrepancies
4 regarding Zhang’s New York church attendance. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii). Zhang’s failure to attend church in
6 the United States called into question whether he was a
7 practicing Christian and undermined his allegations that he
8 risked arrest to practice Christianity in China. See Wensheng
9 Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (“It is well
10 settled that, in assessing the credibility of an asylum
11 applicant’s testimony, an IJ is entitled to consider whether
12 the applicant’s story is inherently implausible.”); Siewe v.
13 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false
14 document or a single instance of false testimony may (if
15 attributable to the petitioner) infect the balance of the
16 alien’s uncorroborated or unauthenticated evidence.”).
17 We have considered Zhang’s remaining arguments and
18 determine that they lack merit. Given the inconsistencies
19 among Zhang’s application, his testimony, and his wife’s
20 testimony regarding both events in china and his practice of
21 Christianity in the United States, the totality of the
22 circumstances supports the adverse credibility ruling. See
23 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; 5 1 Xian Tuan Ye, 446 F.3d at 295. Because all of Zhang’s claims
2 were based on the same factual predicate, the adverse
3 credibility determination is dispositive of asylum,
4 withholding of removal, and CAT relief. Paul v. Gonzales,
5 444 F.3d 148, 156-57 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, Zhang’s motion to
8 expedite ruling on the petition is DENIED as moot. Any
9 pending request for oral argument in this petition is DENIED
10 in accordance with Federal Rule of Appellate Procedure
11 34(a)(2), and Second Circuit Local Rule 34.1(b).
12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court