Zhu v. Barr

Opinion

17-525 Zhu v. Barr BIA Nelson, IJ A205 145 256 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 9th day of September, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 10 Circuit Judges. 11 _____________________________________ 12 14 Petitioner, 15 16 v. 17-525 17 NAC 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Thomas V. Massucci, New York, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant 26 Attorney General; Cindy S. 27 Ferrier, Assistant Director; 28 Michelle Y.F. Sarko, Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 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 Jia Xing Zhu, a native and citizen of the

6 People’s Republic of China, seeks review of a January 31,

7 2017, decision of the BIA affirming an April 5, 2016, decision

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

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Jia Xing Zhu, No.

11 A 205 145 256 (B.I.A. Jan. 31, 2017), aff’g No. A 205 145 256

12 (Immig. Ct. N.Y. City Apr. 5, 2016). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Because the BIA affirmed the decision of the IJ without

16 opinion, we have reviewed the IJ’s decision as the final

17 agency determination. See Shunfu Li v. Mukasey, 529 F.3d

18 141, 146 (2d Cir. 2008). The applicable standards of review

19 are well established. See 8 U.S.C. § 1252(b)(4)(B); see also

20 Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009)

21 (reviewing factual findings underlying burden of proof

2 1 determinations under the substantial evidence standard);

2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009)

3 (reviewing questions of law and application of law to fact de

4 novo). The agency did not err in finding that Zhu failed to

5 satisfy her burden of proof given problems with her testimony

6 and corroborating evidence relating to her alleged arrest and

7 detention in China for attending an underground church and

8 her failure to submit available evidence of her practice of

9 Christianity in both China and the United States.

10 “The testimony of the applicant may be sufficient to

11 sustain the applicant’s burden without corroboration, but

12 only if the applicant satisfies the trier of fact that the

13 applicant’s testimony is credible, is persuasive, and refers

14 to specific facts sufficient to demonstrate that the

15 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see

16 also Chuilu Liu, 575 F.3d at 196-97. “In determining whether

17 the applicant has met [her] burden, the trier of fact may

18 weigh the credible testimony along with other evidence of

19 record. Where the trier of fact determines that the

20 applicant should provide evidence that corroborates otherwise

21 credible testimony, such evidence must be provided unless the

3 1 applicant does not have the evidence and cannot reasonably

2 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). “No

3 court shall reverse a determination made by a trier of fact

4 with respect to the availability of corroborating evidence

5 . . . unless the court finds . . . that a reasonable trier of

6 fact is compelled to conclude that such corroborating

7 evidence is unavailable.” 8 U.S.C. § 1252(b)(4).

8 The IJ reasonably required corroboration given Zhu’s

9 vague testimony about the events surrounding her arrest,

10 beating, and the extent of her resultant injuries. See

11 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196-

12 97. Zhu testified that after police raided her church and

13 arrested her and 18 fellow congregants, she was taken to the

14 police station and “beat up.” When pressed for more detail,

15 Zhu said that police asked her why she had joined an

16 underground church, “caught” her head and pushed her against

17 a wall, and kicked her a few times in the leg, which caused

18 bruising and swelling “all over [her] body.” Despite filing

19 a medical document, Zhu did not testify that she was treated

20 for her injuries while in custody or that she sought treatment

21 when released a week later. The IJ reasonably required

4 1 corroboration to verify the extent, if any, of Zhu’s injuries,

2 which implicated whether the harm alleged constituted

3 persecution. Indeed, while we have held that “non-life-

4 threatening violence and physical abuse” can constitute past

5 persecution, Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d

6 Cir. 2006), the harm suffered must be sufficiently severe,

7 see Jian Qui Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)

8 (clarifying that a beating that occurs within the context of

9 an arrest or detention does not constitute persecution per se

10 and ruling that “minor bruising” did not rise to the level of

11 persecution).

12 Other aspects of Zhu’s testimony lacked detail, which

13 further justified the IJ’s reliance on the lack of

14 corroboration. See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu,

15 575 F.3d at 196–97. For example, Zhu did not know what

16 happened to her fellow parishioners despite being detained

17 with 18 of them for a week at the same police station. And

18 when asked whether anyone from her underground church

19 supported her asylum application, Zhu replied that a former

20 co-worker mailed a copy of his identification card. Though

21 unclear what the identification card would have corroborated,

5 1 the IJ accurately noted that no such evidence was in the

2 record.

3 Moreover, the IJ properly identified the missing

4 evidence. See Chuilu Liu, 575 F.3d at 198-99. Zhu testified

5 that she had attended the same Methodist church in Brooklyn

6 since her baptism in November 2012, yet she did not present

7 testimony or letters from fellow church members or clergy.

8 Although Zhu testified that the U.S. church members did not

9 want to be involved with the government and her pastor would

10 not testify because she did not attend church regularly, a

11 reasonable fact-finder would not be compelled to conclude

12 that no evidence was available, such as a letter from the

13 pastor to confirm Zhu’s baptism. See 8 U.S.C. § 1252(b)(4);

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

15 petitioner must do more than offer a plausible explanation

16 for h[er] inconsistent statements to secure relief; [s]he

17 must demonstrate that a reasonable fact-finder would be

18 compelled to credit h[er] testimony.” (internal quotation

19 marks omitted)). Similarly, the IJ did not err in requiring

20 evidence from Zhu’s younger sister in light of Zhu’s testimony

21 that her sister had recently arrived in the United States and

6 1 was also a Christian. Nor was it unduly speculative for the

2 IJ to expect that Zhu’s sister—who lived in China while Zhu

3 was worshipping at an underground church—would know something

4 about Zhu’s Christian faith, particularly given their common

5 faith and Zhu’s alleged arrest and detention. See Siewe v.

6 Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“The

7 speculation that inheres in inference is not ‘bald’ if the

8 inference is made available to the factfinder by record facts

9 . . . in the light of common sense and ordinary experience.”).

10 Moreover, Zhu provided no explanation for the absence of this

11 evidence. See Chuilu Liu, 575 F.3d at 199 (upholding denial

12 of withholding of removal for lack of corroboration where

13 petitioner failed to “explain[] the absence of such

14 corroborating evidence”).

15 Finally, the IJ did not err in declining to credit the

16 remainder of Zhu’s evidence and in finding it insufficient to

17 meet her burden. The letter from Zhu’s pastor in China did

18 not corroborate or even mention the arrests of Zhu and her

19 fellow parishioners. See Siewe, 480 F.3d at 168–69. The IJ

20 also did not err in questioning the authenticity of Zhu’s

21 medical document because spaces for the date of intake, date

7 1 of discharge, and the case number, were left blank. See Y.C.

2 v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the

3 agency’s determination of the weight afforded to an alien’s

4 documentary evidence.”). Nor was the IJ required to credit

5 an unsworn, undated, and unsigned letter from Zhu’s older

6 sister in China. Id. (deferring to agency’s determination

7 that letter from alien’s spouse in China was entitled to “very

8 little weight” “because it was unsworn and because it was

9 submitted by an interested witness”); Matter of H-L-H- & Z-

10 Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that

11 letters from alien’s friends and family were insufficient

12 support for alien’s claims because they were from interested

13 witnesses not subject to cross-examination), overruled on

14 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–

15 38 (2d Cir. 2012).

16 Given the lack of detailed testimony and reliable

17 corroboration, the agency did not err in finding that Zhu

18 failed to satisfy her burden of establishing past persecution

19 on account of her Christian faith. See 8 U.S.C.

20 § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196-98. That

21 finding is dispositive of asylum, withholding of removal, and

8 1 CAT relief because all three claims were based on the same

2 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-

3 57 (2d Cir. 2006).

4 For the foregoing reasons, the petition for review is

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court