Zou v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: September 15, 2020
• Docket: 17-2970(L)
• Status: Unpublished

Opinion

17-2970(L) Zou v. Barr BIA Schoppert, IJ A205 433 863

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 15th day of September, two thousand twenty.

PRESENT: JON O. NEWMAN, BARRINGTON D. PARKER, MICHAEL H. PARK, Circuit Judges.* _____________________________________

XIAO MING ZOU, Petitioner, 17-2970(L), v. 18-1297(Con) NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gary J. Yerman, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Anthony P.

* 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). Nicastro, Assistant Director; Jenny C. Lee, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of

Board of Immigration Appeals (“BIA”) decisions, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

Petitioner Xiao Ming Zou, a native and citizen of the

People’s Republic of China, seeks review of (1) an April 3,

2018, decision of the BIA denying his motion to reopen, In re

Xiao Ming Zou, No. A205 433 863 (B.I.A. Apr. 3, 2018), and

(2) an August 30, 2017, decision of the BIA affirming a

December 12, 2016, decision of an Immigration Judge (“IJ”)

denying his application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”), In

re Xiao Ming Zou, No. A205 433 863 (B.I.A. Aug. 30, 2017),

aff’g No. A205 433 863 (Immig. Ct. N.Y. City Dec. 12, 2016).

We assume the parties’ familiarity with the underlying facts

and procedural history.

A. Docket 17-2970(L), Order of Removal

Under the circumstances, we have reviewed both the IJ’s

and the BIA’s opinions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d 2 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 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). “We defer . . . to an IJ’s credibility

determination unless, from the totality of the circumstances,

it is plain that no reasonable fact-finder could make such an

adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534

F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d

at 76. Substantial evidence supports the agency’s

determination that Zou was not credible as to his claim that

family planning officials twice detained and beat him for

resisting China’s family planning policy.

The agency reasonably relied on Zou’s inconsistent

statements regarding when he left China. See 8 U.S.C.

§ 1158(b)(1)(B)(iii). During his hearing, Zou repeatedly

changed his testimony, stating that he had departed China in 3 September 2007, September 2012, or January 2012. He

attempted to explain that he has poor hearing in one of his

ears and a “slow reaction.” The IJ was not compelled to

credit these explanations because Zou did not provide

evidence of hearing issues, he was asked the question numerous

times, and he did not indicate that he did not understand the

question. 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)).

Then, when confronted with his asylum application, which

provided yet another departure date of February 2012, Zou

immediately stated that his testimony was probably incorrect.

The agency reasonably concluded that Zou’s immediate

disavowing of his testimony along with his ever-changing

testimony regarding dates gave the impression that he was

attempting to testify to memorized dates from his application

rather than from actual experience. See Li Hua Lin v. U.S.

Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (finding it

reasonable for an IJ to conclude that changing testimony about

dates of significant events along with demeanor may suggest 4 that an applicant is testifying from a memorized script

instead of experience).

The agency also reasonably relied on Zou’s inconsistent

statements about the circumstances of his second alleged

arrest in China. See 8 U.S.C. § 1158(b)(1)(B)(iii). In his

asylum application, Zou stated that, in 2010, family planning

officials knocked down the door while he and his wife were

eating breakfast and beat and arrested Zou when he tried to

prevent them from grabbing his wife. At his hearing,

however, Zou testified inconsistently that, in 2010, his wife

was in hiding and family planning officials arrested him at

home for refusing to disclose her location. When confronted

with this inconsistency, Zou claimed that he had forgotten

and then repeated the contents of his application. When

asked how he forgot that he was protecting his wife from

arrest rather than refusing to provide her location, Zou again

stated that he has a “slow reaction.” The IJ was not

compelled to credit this explanation, particularly when Zou

recalled with precision the contents of his asylum

application after a reminder of those contents. See Majidi,

430 F.3d at 80.

Having questioned Zou’s credibility, the agency

reasonably relied further on his failure to rehabilitate his 5 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 credit the letters from Zou’s mother

and wife because the authors were interested witnesses who

were not available for cross-examination. See Y.C. v.

Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer

to the agency’s evaluation of the weight to be afforded an

applicant’s documentary evidence.”); see also In re 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 were insufficient to

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). The IJ also

acknowledged that Zou had presented a witness who attested to

having seen Zou in China in February 2012, but the IJ

reasonably concluded that this evidence did not overcome

Zou’s inconsistent testimony regarding when he departed China

because, while the witness’s statement was consistent with 6 Zou’s application, it was inconsistent with Zou’s changing

testimony as to the date of his departure. See 8 U.S.C.

§ 1158(b)(1)(B)(iii).

Given the inconsistency and corroboration findings, the

agency’s adverse credibility determination is supported by

substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii).

That determination was dispositive of asylum, withholding of

removal, and CAT relief because all three forms of relief

were based on the same factual predicate.† See Paul v.

Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

B. Docket 18-1297(Con), Motion to Reopen

We review the agency’s denial of a motion to reopen for

abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d

138, 168-69 (2d Cir. 2008). “A motion to reopen proceedings

shall not be granted unless it appears to the Board that

evidence sought to be offered is material and was not

available and could not have been discovered or presented at

the former hearing.” 8 C.F.R. § 1003.2(c)(1); Norani v.

Gonzales, 451 F.3d 292, 294 (2d Cir. 2006) (“[I]n reviewing

the BIA’s determination of whether previously unavailable

† Contrary to the BIA’s and the Government’s conclusions, Zou did not waive withholding of removal and CAT relief because the IJ denied all forms of relief on credibility grounds and Zou challenged the adverse credibility determination. 7 evidence supported [a] motion to reopen, we must inquire

whether the evidence could have been presented at the hearing

before the IJ.”).

The BIA did not abuse its discretion in denying Zou’s

motion. First, the BIA did not err in finding that Zou’s

psychological evaluation was previously available because,

although the evaluation was conducted and prepared after the

IJ’s and BIA’s initial decisions, the evaluation discussed

only events and health issues that predated Zou’s 2016

hearing. See 8 C.F.R. § 1003.2(c)(1); see also Norani, 451

F.3d at 294. Further, the BIA did not err in its alternative

dispositive determination that the psychological evaluation

would not change the outcome of Zou’s proceedings because it

was based solely on Zou’s account of events during one meeting

and he did not present any objective evidence to support the

assertions he made during the evaluation. See INS v. Abudu,

485 U.S. 94, 104-05 (1988) (recognizing that failure to

establish prima facie eligibility for relief is a valid basis

to deny motion to reopen).

The BIA also did not err in rejecting Zou’s argument that

the IJ should have evaluated his competency and required

safeguards to help him proceed more effectively at his

hearing. “[T]he test for determining whether an alien is 8 competent to participate in immigration proceedings is

whether he or she has a rational and factual understanding of

the nature and object of the proceedings, can consult with

the attorney or representative if there is one, and has a

reasonable opportunity to examine and present evidence and

cross-examine witnesses.” Matter of M-A-M-, 25 I. & N. Dec.

474, 479 (BIA 2011). “When there are indicia of

incompetency, an [IJ] must take measures to determine whether

a respondent is competent to participate in proceedings.”

Id. at 480.

Contrary to Zou’s contention, the BIA did not err in

concluding that the record provided no indicia that he was

incompetent. Zou demonstrated an understanding of the nature

and purpose of his hearing, explicitly stating that he was

applying for asylum because he was persecuted under China’s

family planning policy. See id. at 479. He was able to

consult with his attorney who was present at his hearing.

See id. And he had a reasonable opportunity to present

evidence: he testified at length and demonstrated a clear

understanding of the questions posed as evidenced by the

responsiveness of his answers; and he had an opportunity to

question his witness but chose to rely on his witness’s

affidavit only. See id. Further, although Zou claimed to 9 have trouble with his hearing and his response time when

confronted with inconsistencies in his evidence, he clearly

heard the questions posed given his responsive answers and he

did not hesitate in recalling facts, particularly when

reminded of the contents of his written application.

Accordingly, there were no indicia that Zou was incompetent

such that the IJ was required to take measures to determine

competency. See id. at 480.

For the foregoing reasons, the petitions for review are

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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