17-3526 Zhu v. Barr BIA Christensen, IJ A206 311 555 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of June, two thousand nineteen.
PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges. _____________________________________
BO XING ZHU, Petitioner,
v. 17-3526 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Zhou Wang, Esq., New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Nancy Friedman, Senior Litigation Counsel; Kevin J. Conway, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Bo Xing Zhu, a native and citizen of China,
seeks review of an October 17, 2017 decision of the BIA
affirming a February 22, 2017 decision of an Immigration Judge
(“IJ”) denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Bo Xing Zhu, No. A206 311 555 (B.I.A. Oct.
17, 2017), aff’g No. A206 311 555 (Immig. Ct. N.Y.C. Feb. 22,
2017). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We have reviewed both the IJ’s and the BIA’s opinions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The
applicable standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
67, 76 (2d Cir. 2018).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . the inherent plausibility of the
2 applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . . ,
[and] the internal consistency of each such statement . . .
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim . . . .”
8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey,
534 F.3d 162, 163-64 (2d Cir. 2008). Substantial evidence
supports the agency’s determination that Zhu was not credible
as to his claim that police detained and beat him on account
of his practice of Christianity at an unregistered church in
China or as to his practice of Christianity in the United
States.
In support of its adverse credibility finding, the agency
reasonably relied on the inconsistencies in Zhu’s statements
at his credible fear interview and in the testimony he gave
at his hearing regarding his church attendance practices in
China. See 8 U.S.C. § 1158(b)(1)(B)(iii); Ming Zhang v.
Holder, 585 F.3d 715, 724-25 (2d Cir. 2009). As an initial
matter, the interview record was reliable since it was
conducted with an interpreter; it was memorialized in a
typewritten question and answer format; the questions posed
were designed to elicit details of Zhu’s asylum claim; and
3 Zhu’s responses indicated that he understood the questions.
See Ming Zhang, 585 F.3d at 724-25. Next, at his interview,
Zhu stated that he first attended church on April 14, 2013,
and that, after that date, he attended church regularly, on
Sundays, every week. His additional statements also implied
that he attended regularly, describing how he first went to
church gatherings but later attended a church built by the
pastor. However, he later stated at his interview, and
testified at his hearing, that he attended a church gathering
in China only once. See 8 U.S.C. § 1158(b)(1)(B)(iii). The
IJ was not compelled to credit his explanation for the
inconsistency that, at his credible fear interview, he was
nervous. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005) (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (internal quotation marks
omitted)); cf. Ming Zhang, 585 F.3d at 722 (noting that an
applicant’s assertion of nervousness or fear during an
airport interview does not overcome a record of a sworn
statement that has been deemed sufficiently reliable).
The agency also reasonably relied on the inconsistencies
4 in Zhu’s evidence regarding how often he has attended church
in the United States. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Zhu testified that, in the United States, he attended church
twice a month over a period of approximately three years. A
certificate produced by his church, however, described his
attendance as closer to one time each month. He did not
compellingly explain this inconsistency. See Majidi, 430
F.3d at 80.
The agency also reasonably relied on its determination
on the implausibility of several aspects of Zhu’s claim. See
8 U.S.C. § 1158(b)(1)(B)(iii). First, despite statements in
letters from his mother, sister, and friend averring that
police were “hunt[ing]” for him “everywhere,” Zhu admitted
that he was able to leave China from his Province’s airport
using his own passport. See Ying Li v. BCIS, 529 F.3d 79,
82-83 (2d Cir. 2008) (noting implausibility of applicant’s
assertion that she “successfully quit the country using her
own passport (despite allegations of nationwide
persecution)”). The agency also reasonably found it
implausible that Zhu did not know if his parents, in China,
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17-3526 Zhu v. Barr BIA Christensen, IJ A206 311 555 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of June, two thousand nineteen.
PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges. _____________________________________
BO XING ZHU, Petitioner,
v. 17-3526 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Zhou Wang, Esq., New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Nancy Friedman, Senior Litigation Counsel; Kevin J. Conway, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Bo Xing Zhu, a native and citizen of China,
seeks review of an October 17, 2017 decision of the BIA
affirming a February 22, 2017 decision of an Immigration Judge
(“IJ”) denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Bo Xing Zhu, No. A206 311 555 (B.I.A. Oct.
17, 2017), aff’g No. A206 311 555 (Immig. Ct. N.Y.C. Feb. 22,
2017). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We have reviewed both the IJ’s and the BIA’s opinions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The
applicable standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
67, 76 (2d Cir. 2018).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . the inherent plausibility of the
2 applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . . ,
[and] the internal consistency of each such statement . . .
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim . . . .”
8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey,
534 F.3d 162, 163-64 (2d Cir. 2008). Substantial evidence
supports the agency’s determination that Zhu was not credible
as to his claim that police detained and beat him on account
of his practice of Christianity at an unregistered church in
China or as to his practice of Christianity in the United
States.
In support of its adverse credibility finding, the agency
reasonably relied on the inconsistencies in Zhu’s statements
at his credible fear interview and in the testimony he gave
at his hearing regarding his church attendance practices in
China. See 8 U.S.C. § 1158(b)(1)(B)(iii); Ming Zhang v.
Holder, 585 F.3d 715, 724-25 (2d Cir. 2009). As an initial
matter, the interview record was reliable since it was
conducted with an interpreter; it was memorialized in a
typewritten question and answer format; the questions posed
were designed to elicit details of Zhu’s asylum claim; and
3 Zhu’s responses indicated that he understood the questions.
See Ming Zhang, 585 F.3d at 724-25. Next, at his interview,
Zhu stated that he first attended church on April 14, 2013,
and that, after that date, he attended church regularly, on
Sundays, every week. His additional statements also implied
that he attended regularly, describing how he first went to
church gatherings but later attended a church built by the
pastor. However, he later stated at his interview, and
testified at his hearing, that he attended a church gathering
in China only once. See 8 U.S.C. § 1158(b)(1)(B)(iii). The
IJ was not compelled to credit his explanation for the
inconsistency that, at his credible fear interview, he was
nervous. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005) (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (internal quotation marks
omitted)); cf. Ming Zhang, 585 F.3d at 722 (noting that an
applicant’s assertion of nervousness or fear during an
airport interview does not overcome a record of a sworn
statement that has been deemed sufficiently reliable).
The agency also reasonably relied on the inconsistencies
4 in Zhu’s evidence regarding how often he has attended church
in the United States. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Zhu testified that, in the United States, he attended church
twice a month over a period of approximately three years. A
certificate produced by his church, however, described his
attendance as closer to one time each month. He did not
compellingly explain this inconsistency. See Majidi, 430
F.3d at 80.
The agency also reasonably relied on its determination
on the implausibility of several aspects of Zhu’s claim. See
8 U.S.C. § 1158(b)(1)(B)(iii). First, despite statements in
letters from his mother, sister, and friend averring that
police were “hunt[ing]” for him “everywhere,” Zhu admitted
that he was able to leave China from his Province’s airport
using his own passport. See Ying Li v. BCIS, 529 F.3d 79,
82-83 (2d Cir. 2008) (noting implausibility of applicant’s
assertion that she “successfully quit the country using her
own passport (despite allegations of nationwide
persecution)”). The agency also reasonably found it
implausible that Zhu did not know if his parents, in China,
continued to attend the same church that he had attended,
despite his testimony that he spoke to them two or three times
5 a week for years, and despite having asked his mother to
prepare a letter corroborating his claim of religious
persecution. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66-
68 (2d Cir. 2007) (recognizing that adverse credibility
determination may be based on inherent implausibility in
applicant’s story if the “finding is tethered to record
evidence” or based on common sense (citing Siewe v. Gonzales,
480 F.3d 160, 168-69 (2d Cir. 2007))). Zhu did not
compellingly explain away these implausible statements. See
Majidi, 430 F.3d at 80.
Having questioned Zhu’s credibility, the agency
reasonably relied further on his failure to rehabilitate his
testimony with reliable corroborating evidence. “An
applicant’s failure to corroborate his or her testimony may
bear on credibility, because the absence of corroboration in
general makes an applicant unable to rehabilitate testimony
that has already been called into question.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency
reasonably declined to afford weight to unsworn letters from
Zhu’s mother, sister, and friend, because the authors were
interested and unavailable for cross-examination. See Y.C.
v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to
6 agency’s decision to afford little weight to relative’s
letter from China because it was unsworn and from an
interested witness); Matter of H-L-H- & Z-Y-Z-, 25 I. & N.
Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s
friends and family did not provide substantial support for
alien’s claims because they were from interested witnesses
not subject to cross-examination), overruled on other grounds
by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir.
2012). Further, Zhu failed to proffer testimony from anyone
to corroborate his statements regarding his church attendance
in the United States.
Given these inconsistencies, the implausible aspects of
his claim, and the absence of sufficient reliable
corroboration, we conclude that the agency’s adverse
credibility determination is supported by substantial
evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). That
determination is dispositive of Zhu’s claims for asylum,
withholding of removal, and CAT relief, because all three
rest on the same factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT: Catherine O’Hagan Wolfe Clerk of Court