22-6353 Zou v. Garland BIA McCarthy, IJ A202 134 282
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 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 30th day of July, two thousand twenty- 4 four. 5 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 NINGWEL ZOU, 14 Petitioner, 15 16 v. 22-6353 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Theodore N. Cox, Esq., New York, NY. 1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Leslie McKay, Senior 3 Litigation Counsel; Rosanne M. Perry, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Ningwel Zou, a native and citizen of the People’s Republic of
11 China, seeks review of a July 13, 2022 decision of the BIA affirming a June 7, 2019
12 decision of an Immigration Judge (“IJ”) denying his application for asylum,
13 withholding of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Ningwel Zou, No. A 202 134 282 (B.I.A. July 13, 2022), aff’g No. A
15 202 134 282 (Immigr. Ct. N.Y.C. June 7, 2019). We assume the parties’ familiarity
16 with the underlying facts and procedural history.
17 We have reviewed both the BIA’s and the IJ’s decisions. See Yun-Zui Guan
18 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (“Where, as here, the BIA agrees with
19 the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the
20 IJ’s grounds for decision, emphasizes particular aspects of that decision, we will
21 review both the BIA’s and IJ’s opinions-or more precisely, we review the IJ’s 2 1 decision including the portions not explicitly discussed by the BIA.”). We review
2 the agency’s factual findings, including adverse credibility determinations, for
3 substantial evidence, and we review questions of law and the application of law
4 to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he
5 administrative findings of fact are conclusive unless any reasonable adjudicator
6 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
7 “Considering the totality of the circumstances, and all relevant factors, a
8 trier of fact may base a credibility determination on the demeanor, candor, or
9 responsiveness of the applicant . . . , the consistency between the applicant’s . . .
10 written and oral statements (whenever made and whether or not under oath, and
11 considering the circumstances under which the statements were made), the
12 internal consistency of each such statement, the consistency of such statements
13 with other evidence of record . . . , and any inaccuracies or falsehoods in such
14 statements, without regard to whether an inconsistency, inaccuracy, or falsehood
15 goes to the heart of the applicant’s claim, or any other relevant factor.” Id.
16 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
17 the totality of the circumstances, it is plain that no reasonable fact-finder could
18 make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
3 1 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence
2 supports the agency’s determination that Zou was not credible as to his claim that
3 he was detained and beaten for distributing Christian literature in China.
4 The agency’s demeanor finding—that Zou paused, “feigned surprise,” and
5 became nonresponsive and inconsistent on cross-examination—is entitled to
6 deference. Certified Admin. R. 58; see Likai Gao v. Barr, 968 F.3d 137, 149 (2d Cir.
7 2020) (deferring to agency’s demeanor assessment that was based on observations
8 that the petitioner was “sometimes ‘non-responsive’ to questions”). We give
9 “particular deference” to such findings because the IJ is “in the best position to
10 evaluate whether apparent problems in the . . . testimony suggest a lack of
11 credibility or, rather, can be attributed to an innocent cause such as difficulty
12 understanding the question.” Li Hua Lin v. U.S. Dep’t of Just., 453 F.3d 99, 109 (2d
13 Cir. 2006) (quotation marks omitted). “We can be still more confident in our
14 review of observations about an applicant’s demeanor where, as here, they are
15 supported by specific examples of inconsistent testimony.” Id.
16 Zou’s testimony was responsive and specific on direct examination, and he
17 did not request clarification of any questions. But, as the IJ observed, he
18 professed not to understand simple questions on cross-examination, and the
4 1 record reflects long pauses before some answers. Zou argues that he paused and
2 asked for clarification because he did not understand questions, but IJs are
3 generally in the best position to decide whether a witness understood questions.
4 Id.; see also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (concluding that an
5 IJ “is in the best position to discern, often at a glance, whether a question that may
6 appear poorly worded on a printed page was, in fact, confusing or well
7 understood by those who heard it; whether a witness who hesitated in a response
8 was nevertheless attempting truthfully to recount what he recalled of key events
9 or struggling to remember the lines of a carefully crafted ‘script’; and whether
10 inconsistent responses are the product of innocent error or intentional falsehood”
11 (quotation marks omitted)). Moreover, Zou’s answers were vague and not
12 responsive when pressed for details about the flyers he claimed to have distributed
13 to lead others to his church. When asked how the flyer he described, which did
14 not contain any information about his church, could lead people to it, he was
15 initially unresponsive, then said that he did not know, and only after additional
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22-6353 Zou v. Garland BIA McCarthy, IJ A202 134 282
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 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 30th day of July, two thousand twenty- 4 four. 5 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 NINGWEL ZOU, 14 Petitioner, 15 16 v. 22-6353 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Theodore N. Cox, Esq., New York, NY. 1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Leslie McKay, Senior 3 Litigation Counsel; Rosanne M. Perry, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Ningwel Zou, a native and citizen of the People’s Republic of
11 China, seeks review of a July 13, 2022 decision of the BIA affirming a June 7, 2019
12 decision of an Immigration Judge (“IJ”) denying his application for asylum,
13 withholding of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Ningwel Zou, No. A 202 134 282 (B.I.A. July 13, 2022), aff’g No. A
15 202 134 282 (Immigr. Ct. N.Y.C. June 7, 2019). We assume the parties’ familiarity
16 with the underlying facts and procedural history.
17 We have reviewed both the BIA’s and the IJ’s decisions. See Yun-Zui Guan
18 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (“Where, as here, the BIA agrees with
19 the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the
20 IJ’s grounds for decision, emphasizes particular aspects of that decision, we will
21 review both the BIA’s and IJ’s opinions-or more precisely, we review the IJ’s 2 1 decision including the portions not explicitly discussed by the BIA.”). We review
2 the agency’s factual findings, including adverse credibility determinations, for
3 substantial evidence, and we review questions of law and the application of law
4 to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he
5 administrative findings of fact are conclusive unless any reasonable adjudicator
6 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
7 “Considering the totality of the circumstances, and all relevant factors, a
8 trier of fact may base a credibility determination on the demeanor, candor, or
9 responsiveness of the applicant . . . , the consistency between the applicant’s . . .
10 written and oral statements (whenever made and whether or not under oath, and
11 considering the circumstances under which the statements were made), the
12 internal consistency of each such statement, the consistency of such statements
13 with other evidence of record . . . , and any inaccuracies or falsehoods in such
14 statements, without regard to whether an inconsistency, inaccuracy, or falsehood
15 goes to the heart of the applicant’s claim, or any other relevant factor.” Id.
16 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
17 the totality of the circumstances, it is plain that no reasonable fact-finder could
18 make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
3 1 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence
2 supports the agency’s determination that Zou was not credible as to his claim that
3 he was detained and beaten for distributing Christian literature in China.
4 The agency’s demeanor finding—that Zou paused, “feigned surprise,” and
5 became nonresponsive and inconsistent on cross-examination—is entitled to
6 deference. Certified Admin. R. 58; see Likai Gao v. Barr, 968 F.3d 137, 149 (2d Cir.
7 2020) (deferring to agency’s demeanor assessment that was based on observations
8 that the petitioner was “sometimes ‘non-responsive’ to questions”). We give
9 “particular deference” to such findings because the IJ is “in the best position to
10 evaluate whether apparent problems in the . . . testimony suggest a lack of
11 credibility or, rather, can be attributed to an innocent cause such as difficulty
12 understanding the question.” Li Hua Lin v. U.S. Dep’t of Just., 453 F.3d 99, 109 (2d
13 Cir. 2006) (quotation marks omitted). “We can be still more confident in our
14 review of observations about an applicant’s demeanor where, as here, they are
15 supported by specific examples of inconsistent testimony.” Id.
16 Zou’s testimony was responsive and specific on direct examination, and he
17 did not request clarification of any questions. But, as the IJ observed, he
18 professed not to understand simple questions on cross-examination, and the
4 1 record reflects long pauses before some answers. Zou argues that he paused and
2 asked for clarification because he did not understand questions, but IJs are
3 generally in the best position to decide whether a witness understood questions.
4 Id.; see also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (concluding that an
5 IJ “is in the best position to discern, often at a glance, whether a question that may
6 appear poorly worded on a printed page was, in fact, confusing or well
7 understood by those who heard it; whether a witness who hesitated in a response
8 was nevertheless attempting truthfully to recount what he recalled of key events
9 or struggling to remember the lines of a carefully crafted ‘script’; and whether
10 inconsistent responses are the product of innocent error or intentional falsehood”
11 (quotation marks omitted)). Moreover, Zou’s answers were vague and not
12 responsive when pressed for details about the flyers he claimed to have distributed
13 to lead others to his church. When asked how the flyer he described, which did
14 not contain any information about his church, could lead people to it, he was
15 initially unresponsive, then said that he did not know, and only after additional
16 questioning offered that the recipients would sometimes ask questions, and that
17 he might invite them to attend the church.
18 In addition, Zou’s testimony about his passport on cross-examination
5 1 included inconsistencies and partial answers. Zou testified that he left China
2 using his Chinese passport, but his application stated that he was never issued a
3 passport. When asked about the discrepancy, Zou first testified that he was
4 nervous when completing the application, and then said that he was asked
5 whether he had a passport when he came to the United States (which he did not,
6 because it was taken from him in Mexico). The agency was not required to accept
7 those shifting explanations, particularly given that the question on the application
8 is what country issued the last passport or travel document. See Majidi, 430 F.3d
9 at 80 (“A petitioner must do more than offer a plausible explanation for his
10 inconsistent statements to secure relief; he must demonstrate that a reasonable
11 fact-finder would be compelled to credit his testimony.” (quotation marks
12 omitted)). To the extent that Zou wishes to attribute the inconsistency to attorney
13 error, he has not complied with the requirements for an ineffective assistance of
14 counsel claim. See Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1998) (imposing
15 procedural requirements for ineffective assistance claims); see also Garcia-Martinez
16 v. Dep’t of Homeland Sec., 448 F.3d 511, 513 (2d Cir. 2006) (holding that an applicant
17 “who has failed to comply substantially with the Lozada requirements forfeits his
18 ineffective assistance of counsel claim in this Court” (quotation marks and
6 1 alterations omitted)). Zou otherwise argues that this inconsistency is not relevant
2 to his claim of persecution, but the agency is entitled to consider minor and
3 ancillary inconsistencies “as long as the ‘totality of the circumstances’ establishes
4 that [the] asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167 (quoting
5 8 U.S.C. §1158(b)(1)(B)(iii)).
6 Zou also gave inconsistent and nonresponsive testimony when he was
7 asked on cross-examination about his refusal to sign certain documents at his
8 border interview. Initially, Zou testified that he did sign the documents; when
9 confronted by facts suggesting that he did not, Zou (in the IJ’s words) “feigned
10 surprise” that he had failed to sign. See Li Hua Lin, 453 F.3d at 109 (stating that an
11 “adjudicator’s observation of the applicant” merits “particular deference” (citation
12 and quotation marks omitted)). When asked again why he had refused to sign
13 the documents, Zou then changed his testimony and explained that he was afraid
14 of being sent back to China, and that he did not understand English. But when
15 the government attorney pointed out that Zou was assisted by a Mandarin
16 interpreter at the border, Zou then stammered an unclear response and reverted
17 to his original answer that he did sign the documents. When the IJ later asked
18 him to clarify his answer again, Zou did not offer one.
7 1 Finally, the absence of reliable corroboration further bolsters the adverse
2 credibility determination. “An applicant’s failure to corroborate his or her
3 testimony may bear on credibility, because the absence of corroboration in general
4 makes an applicant unable to rehabilitate testimony that has already been called
5 into question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Zou has
6 not challenged the IJ’s conclusion that certificates of detention and release
7 purportedly issued by the police in China were entitled to little weight; nor has he
8 challenged the BIA’s conclusion that this issue was waived. See Debique v.
9 Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not
10 adequately presented in an appellant’s brief, and an appellant’s failure to make
11 legal or factual arguments constitutes abandonment.” (quotation marks omitted));
12 Ud Din v. Garland, 72 F.4th 411, 419–20 & n.2 (2d Cir. 2023) (issue exhaustion is
13 mandatory). Contrary to Zou’s position, the corroboration finding remains part
14 of the decision under review because the BIA did not reject it. See Yun-Zui Guan,
15 432 F.3d at 394. Moreover, the IJ did not err in giving little weight to these
16 certificates: as the IJ explained, the certificate of detention appears to state that Zou
17 was arrested at “10:23,” which is contrary to his testimony that he was arrested at
18 about 3:00 in the afternoon. Certified Admin. R. 206. The IJ was not required to
8 1 accept Zou’s explanation that the certificate was prepared the evening after his
2 arrest. See Siewe v. Gonzales, 480 F.3d 160, 167–68 (2d Cir. 2007) (“Where there are
3 two permissible views of the evidence, the factfinder’s choice between them
4 cannot be clearly erroneous . . . . Rather a reviewing court must defer to that choice
5 so long as the deductions are not illogical or implausible.” (quotation marks
6 omitted)); Majidi, 430 F.3d at 80.
7 In summary, substantial evidence supports the adverse credibility
8 determination given the agency’s findings regarding Zou’s demeanor, which are
9 supported by specific examples of nonresponsive and inconsistent testimony, and
10 the absence of reliable corroboration. See Xiu Xia Lin, 534 F.3d at 167; Li Hua Lin,
11 453 F.3d at 109; Biao Yang, 496 F.3d at 273. The adverse credibility determination
12 is dispositive of asylum, withholding of removal, and CAT relief because all three
13 claims are based on the same factual predicate. See Hong Fei Gao, 891 F.3d at 76.
14 For the foregoing reasons, the petition for review is DENIED. All pending
15 motions and applications are DENIED and stays VACATED.
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court 18