Zou Chang Ming v. United States Attorney General

164 F. App'x 93
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 26, 2006
DocketNo. 03-40967-AG
StatusPublished

This text of 164 F. App'x 93 (Zou Chang Ming v. United States Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zou Chang Ming v. United States Attorney General, 164 F. App'x 93 (2d Cir. 2006).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review of the order of the Board of Immigration Appeals (“BIA”) dated October 22, 2003, is hereby DENIED.

Petitioner Zou Chang Ming, a citizen of the People’s Republic of China who entered the United States on May 21, 2000, challenges the BIA’s summary affirmance [94]*94of a decision by an immigration judge (“IJ”) denying his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). We assume the parties’ familiarity with the facts and the record of • prior proceedings, which we reference only as necessary to explain our decision.

1. Standard of Review

To qualify for asylum, an applicant bears the burden of demonstrating past persecution or a well-founded fear of future persecution on account of specified statutory grounds. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004); see also 8 U.S.C. § 1101(a)(42)(A) (2000). For withholding of removal, an applicant “must demonstrate that, if returned to his country, his life or freedom would in fact be threatened on one of the protected refugee grounds.” Zhou Yun Zhang v. United States INS, 386 F.3d 66, 71 (2d Cir.2004) (citing 8 U.S.C. § 1231(b)(3)(A)). Where the veracity of the evidence of a threat to applicant’s freedom wholly depends upon the applicant’s credibility, a denial of asylum based upon an adverse credibility determination necessarily forecloses success on a claim for withholding of removal. See Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). With respect to a CAT claim, “[t]o qualify under the CAT, an alien must establish that ‘it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ ” Islami v. Gonzales, 412 F.3d 391, 395 (2d Cir.2005) (quoting Ramsameachire v. Ashcroft, 357 F.3d at 184).

When, as in this case, the BIA summarily affirms the decision of an IJ, we review the decision of the IJ directly. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). An IJ’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Zhou Yun Zhang v. United States INS, 386 F.3d at 73 & n. 7. We will not disturb the findings of the IJ if they are “supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Wu Biao Chen v. INS, 344 F.3d at 275 (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). “When a factual challenge pertains to a credibility finding made by an IJ and adopted by the BIA, we afford ‘particular deference’ in applying the substantial evidence standard.” Zhou Yun Zhang v. United States INS, 386 F.3d at 73 (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). This does not insulate credibility findings from judicial review. See Ramsameachire v. Ashcroft, 357 F.3d at 178. Nevertheless, such review is necessarily narrow “because a reviewing court cannot glean from a hearing record the insights necessary to duplicate the fact-finder’s assessment of credibility.” Zhou Yun Zhang v. United States INS, 386 F.3d at 74. Judicial review serves primarily “to ensure that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Id. Where an IJ can point to specific record examples of “inconsistent statements” or “inherently improbable testimony” by the asylum applicant on matters material to his claim of persecution, “a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find” the applicant credible. Id. (internal quotation marks omitted).

2. Asylum and Withholding Applications

Zou’s persecution claim is essentially derivative. He asserts past persecution and likely future persecution if returned to China based on the fact that, in April 1990, Chinese family planning officials sought to compel his pregnant girlfriend to submit to an abortion. Zou claims that he was de[95]*95tamed by Chinese officials for two days in April and released only when he promised to produce his girlfriend for an abortion and to register for marriage. In fact, after Zou fled China in late April 1990, his girlfriend did not undergo an abortion, but rather successfully gave birth to a daughter in November of that year.1 In concluding that Zou had not demonstrated his eligibility for asylum or any other relief from removal, the IJ cited two, independent reasons: (1) the BIA’s recognition of derivative spousal claims of persecution, see In re C-Y-Z-, 211. & N. Dec. 915, 918, 1997 WL 353222 (B.I.A.1997), did not extend to unmarried couples; and (2) Zou’s testimony in support of his persecution claim was, in any event, not credible.

For the reasons stated in our decision in Shi Liang Lin v. United States Dep’t of Justice, 416 F.3d 184, 191-92 (2d Cir.2005), we cannot review the IJ’s first rationale for decision until “the BIA has clarified why it established spousal eligibility in the first instance.” Nevertheless, we deny Zou’s petition for review because the IJ’s alternative rationale is supported by substantial evidence.

We preliminarily note that the IJ’s adverse credibility finding was not based on identified contradictions in Zou’s testimony, either internally or as compared with his asylum application. Rather, the IJ found that Zou’s account of past persecution was inherently implausible. A finding of implausibility plainly cannot be based on “bald speculation,” see Zhou Yun Zhang v. United States INS, 386 F.3d at 74; on the other hand, an account need not be patently irrational or demonstrably false to be deemed implausible. A fact-finder must necessarily rely on experience, judgment, common sense, and a careful assessment of witness demeanor in deciding whether an account is so unbelievable as to be fairly labeled implausible. Because, in this case, the IJ identified specific, cogent reasons for concluding that Zou’s testimony was implausible, we conclude that her finding is supported by substantial evidence.

These reasons included a State Department Country Profile indicating that China fines women who become pregnant with their first child while unmarried, but does not insist on abortions.

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