18-3266 Zhu v. Barr BIA Thompson, IJ A206 576 047 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 16th day of September, two thousand twenty. 5 6 PRESENT: 10 Circuit Judges. 1 11 _____________________________________ 12 14 Petitioner, 15 16 v. 18-3266 17 NAC 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Diana Rubin, Esq., Manhasset, NY. 24
1 Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable. Circuit Judge Jon O. Newman has replaced Judge Hall on the panel for this matter. See 2d Cir. IOP E(b). 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Julie M. Iversen, Senior 3 Litigation Counsel; Annette M. 4 Wietecha, Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Hongchun Zhu, a native and citizen of the
13 People’s Republic of China, seeks review of an October 2,
14 2018, decision of the BIA affirming an October 26, 2017,
15 decision of an Immigration Judge (“IJ”) denying his
16 applications for asylum, withholding of removal, and relief
17 under the Convention Against Torture (“CAT”). In re Hongchun
18 Zhu, No. A 206 576 047 (B.I.A. Oct. 2, 2018), aff’g No. A 206
19 576 047 (Immig. Ct. N.Y. City Oct. 26, 2017). We assume the
20 parties’ familiarity with the underlying facts and procedural
21 history in this case.
22 We have reviewed both the IJ’s and the BIA’s decisions
23 “for the sake of completeness.” Wangchuck v. Dep’t of
24 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
25 applicable standards of review are well established. See 8 2 1 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
2 67, 76 (2d Cir. 2018) (reviewing adverse credibility
3 determination for substantial evidence).
4 “Considering the totality of the circumstances, and all
5 relevant factors, a trier of fact may base a credibility
6 determination on the demeanor, candor, or responsiveness of
7 the applicant . . . , the consistency between the applicant’s
8 . . . written and oral statements . . . , the internal
9 consistency of each such statement, the consistency of such
10 statements with other evidence of record . . . without regard
11 to whether an inconsistency, inaccuracy, or falsehood goes to
12 the heart of the applicant’s claim, or any other relevant
13 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
14 an IJ’s credibility determination unless, from the totality
15 of the circumstances, it is plain that no reasonable fact-
16 finder could make such an adverse credibility ruling.” Xiu
17 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
18 Hong Fei Gao, 891 F.3d at 76. We deny the petition because
19 the agency’s adverse credibility determination is supported
20 by substantial evidence.
21 Zhu alleged past persecution on account of his attempt
3 1 to expose government corruption in enforcement of the family
2 planning policy. As the agency found, the multiple
3 inconsistencies in his statements provided substantial
4 evidence for the adverse credibility determination. He was
5 inconsistent about when he first complained to the government
6 about his wife’s forced abortion, the dates of his two
7 arrests, the number of officers who interrogated him during
8 his first detention, and the frequency with which he was
9 required to report to the police. See Likai Gao v. Barr, No.
10 18-358, 2020 WL 4290009,*4 n.8 (2d Cir. July 28, 2020)
11 (“recogniz[ing] that even a single inconsistency might
12 preclude an alien from showing that an IJ was compelled to
13 find him credible” and thus “[m]ultiple inconsistencies would
14 so preclude even more forcefully”). He did not have
15 compelling explanations for these inconsistencies. See
16 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
17 petitioner must do more than offer a plausible explanation
18 for his inconsistent statements to secure relief; he must
19 demonstrate that a reasonable fact-finder would be compelled
20 to credit his testimony.” (internal quotation marks
21 omitted)).
4 1 He also failed to include in his written statement the
2 fact that the police came to his home twice after he left
3 China. While the agency may err if it relies too heavily on
4 minor omissions, at least where the omitted information would
5 have supplemented, rather than contradicted, earlier
6 statements, the agency did not err here because the omission
7 directly related to the possibility of future persecution.
8 See Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir. 2009)
9 (holding that the agency may “draw an adverse inference about
10 petitioner’s credibility based, inter alia, on h[is] failure
11 to mention” important details or events in prior statements).
12 The agency’s demeanor finding further bolsters the
13 adverse credibility determination. We generally defer to a
14 demeanor finding. See Jin Chen v. U.S. Dep’t of Justice, 426
15 F.3d 104, 113 (2d Cir. 2005). The IJ found that Zhu was often
16 nonresponsive to clear, direct questions, his delivery was
17 “rote” and “lacking in expression,” and he paused for long
18 periods when confronted with his contradictions. In addition
19 to the deference afforded these findings, they are supported
20 by the record, which reflects that the IJ had to remind Zhu
21 to be responsive to questions from his own attorney.
5 1 Having reasonably questioned Zhu’s credibility, the
2 agency reasonably relied on his failure to rehabilitate his
3 testimony with reliable corroborating evidence. “An
4 applicant’s failure to corroborate his or her testimony may
5 bear on credibility, because the absence of corroboration in
6 general makes an applicant unable to rehabilitate testimony
7 that has already been called into question.” Biao Yang v.
8 Gonzales,
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18-3266 Zhu v. Barr BIA Thompson, IJ A206 576 047 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 16th day of September, two thousand twenty. 5 6 PRESENT: 10 Circuit Judges. 1 11 _____________________________________ 12 14 Petitioner, 15 16 v. 18-3266 17 NAC 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Diana Rubin, Esq., Manhasset, NY. 24
1 Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable. Circuit Judge Jon O. Newman has replaced Judge Hall on the panel for this matter. See 2d Cir. IOP E(b). 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Julie M. Iversen, Senior 3 Litigation Counsel; Annette M. 4 Wietecha, Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Hongchun Zhu, a native and citizen of the
13 People’s Republic of China, seeks review of an October 2,
14 2018, decision of the BIA affirming an October 26, 2017,
15 decision of an Immigration Judge (“IJ”) denying his
16 applications for asylum, withholding of removal, and relief
17 under the Convention Against Torture (“CAT”). In re Hongchun
18 Zhu, No. A 206 576 047 (B.I.A. Oct. 2, 2018), aff’g No. A 206
19 576 047 (Immig. Ct. N.Y. City Oct. 26, 2017). We assume the
20 parties’ familiarity with the underlying facts and procedural
21 history in this case.
22 We have reviewed both the IJ’s and the BIA’s decisions
23 “for the sake of completeness.” Wangchuck v. Dep’t of
24 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
25 applicable standards of review are well established. See 8 2 1 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
2 67, 76 (2d Cir. 2018) (reviewing adverse credibility
3 determination for substantial evidence).
4 “Considering the totality of the circumstances, and all
5 relevant factors, a trier of fact may base a credibility
6 determination on the demeanor, candor, or responsiveness of
7 the applicant . . . , the consistency between the applicant’s
8 . . . written and oral statements . . . , the internal
9 consistency of each such statement, the consistency of such
10 statements with other evidence of record . . . without regard
11 to whether an inconsistency, inaccuracy, or falsehood goes to
12 the heart of the applicant’s claim, or any other relevant
13 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
14 an IJ’s credibility determination unless, from the totality
15 of the circumstances, it is plain that no reasonable fact-
16 finder could make such an adverse credibility ruling.” Xiu
17 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
18 Hong Fei Gao, 891 F.3d at 76. We deny the petition because
19 the agency’s adverse credibility determination is supported
20 by substantial evidence.
21 Zhu alleged past persecution on account of his attempt
3 1 to expose government corruption in enforcement of the family
2 planning policy. As the agency found, the multiple
3 inconsistencies in his statements provided substantial
4 evidence for the adverse credibility determination. He was
5 inconsistent about when he first complained to the government
6 about his wife’s forced abortion, the dates of his two
7 arrests, the number of officers who interrogated him during
8 his first detention, and the frequency with which he was
9 required to report to the police. See Likai Gao v. Barr, No.
10 18-358, 2020 WL 4290009,*4 n.8 (2d Cir. July 28, 2020)
11 (“recogniz[ing] that even a single inconsistency might
12 preclude an alien from showing that an IJ was compelled to
13 find him credible” and thus “[m]ultiple inconsistencies would
14 so preclude even more forcefully”). He did not have
15 compelling explanations for these inconsistencies. See
16 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
17 petitioner must do more than offer a plausible explanation
18 for his inconsistent statements to secure relief; he must
19 demonstrate that a reasonable fact-finder would be compelled
20 to credit his testimony.” (internal quotation marks
21 omitted)).
4 1 He also failed to include in his written statement the
2 fact that the police came to his home twice after he left
3 China. While the agency may err if it relies too heavily on
4 minor omissions, at least where the omitted information would
5 have supplemented, rather than contradicted, earlier
6 statements, the agency did not err here because the omission
7 directly related to the possibility of future persecution.
8 See Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir. 2009)
9 (holding that the agency may “draw an adverse inference about
10 petitioner’s credibility based, inter alia, on h[is] failure
11 to mention” important details or events in prior statements).
12 The agency’s demeanor finding further bolsters the
13 adverse credibility determination. We generally defer to a
14 demeanor finding. See Jin Chen v. U.S. Dep’t of Justice, 426
15 F.3d 104, 113 (2d Cir. 2005). The IJ found that Zhu was often
16 nonresponsive to clear, direct questions, his delivery was
17 “rote” and “lacking in expression,” and he paused for long
18 periods when confronted with his contradictions. In addition
19 to the deference afforded these findings, they are supported
20 by the record, which reflects that the IJ had to remind Zhu
21 to be responsive to questions from his own attorney.
5 1 Having reasonably questioned Zhu’s credibility, the
2 agency reasonably relied on his failure to rehabilitate his
3 testimony with reliable corroborating evidence. “An
4 applicant’s failure to corroborate his or her testimony may
5 bear on credibility, because the absence of corroboration in
6 general makes an applicant unable to rehabilitate testimony
7 that has already been called into question.” Biao Yang v.
8 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Zhu’s only
9 corroboration of his alleged past harm was letters from his
10 wife and neighbor in China, a medical record for treatment
11 after his first arrest and beating, and a receipt for the
12 fine he allegedly paid for violating the family planning
13 policy. The agency did not err in declining to afford
14 significant weight to these documents because the authors
15 were not available for cross-examination, Zhu’s wife was an
16 interested party and her letter omitted Zhu’s claim that the
17 police came to their home twice after he left for the United
18 States, Zhu’s neighbor’s letter was inconsistent with Zhu’s
19 initial statement that he had to report monthly to the police,
20 the medical record and fine receipt were not authenticated,
21 and the medical record was inconsistent with Zhu’s testimony.
6 1 See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)
2 (deferring to agency’s decision to afford little weight to
3 spouse’s letter from China); see also In re H-L-H- & Z-Y-Z-,
4 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (letters from alien’s
5 friends and family did not provide substantial support for
6 alien’s claims because they were from interested witnesses
7 not subject to cross-examination), overruled on other grounds
8 by Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir.
9 2012).
10 As final matters, Zhu’s arguments on appeal to the BIA
11 and this Court that his testimony was negatively impacted by
12 his mental state, side effects from herbal medication, and
13 the interpreter’s poor performance are unpersuasive. Zhu
14 points to no specific errors in the interpretation and the
15 record reflects that the interpreter sought clarification
16 when needed. Zhu provided no evidence that he was under the
17 influence of the medication at the time of his hearing, nor
18 did he allege at the hearing that any mental or physical
19 impairment was preventing him from answering questions.
20 Accordingly, the inconsistencies, omission, demeanor
21 finding, and lack of reliable corroboration constitute
7 1 substantial evidence for the adverse credibility
2 determination. See Xiu Xia Lin, 534 F.3d at 165–66. This
3 adverse credibility determination is dispositive of asylum,
4 withholding of removal, and CAT relief because all three forms
5 of relief were based on the same discredited factual
6 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
7 Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court