Zhu v. Lynch , 614 F. App'x 1 ( 2015 )

14-2103
Zhu v. Lynch
BIA
Rohan, IJ
A200 181 025
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 5th day of June, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 JIN WEI ZHU,
14 Petitioner,
15
16 v. 14-2103
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Michael Brown, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
27 Attorney General, Civil Division;
28 Edward E. Wiggers, Senior Litigation
29 Counsel; Nicole J. Thomas-Dorris,
30 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Jin Wei Zhu, a native and citizen of China, seeks
10 review of a June 3, 2014, decision of the BIA affirming a June
11 25, 2013, decision of an Immigration Judge (“IJ”) denying
12 asylum, withholding of removal, and relief under the Convention
13 Against Torture (“CAT”). In re Jin Wei Zhu, No. A200 181 025
14 (B.I.A. Jun. 3, 2014), aff’g No. A200 181 025 (Immig. Ct. N.Y.
15 City Jun. 25, 2013). We assume the parties’ familiarity with
16 the underlying facts and procedural history in this case.
17 We have reviewed the IJ’s decision as supplemented by the
18 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
19 The applicable standards of review are well established. See
20 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
21 513 (2d Cir. 2009).
22 For asylum applications, like Zhu’s, governed by the REAL
23 ID Act, the agency may, “[c]onsidering the totality of the
2
1 circumstances,” base a credibility finding on “demeanor,
2 candor, or responsiveness of the applicant or witness,” and
3 inconsistencies and omissions in an asylum applicant’s
4 statements and other record evidence “without regard to
5 whether” they go “to the heart of the applicant’s claim.”
6 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d
7 162, 163-64, 167 (2d Cir. 2008). The IJ’s determination that
8 Zhu was not credible is supported by substantial evidence.
9 The IJ cited a series of inconsistencies that cast doubt
10 on whether Zhu is actually a practicing Christian. The
11 inconsistencies relate to whether Zhu joined a U.S. church, his
12 wife attended his baptism, he and his wife began attending
13 church at the same time, and his wife took baptism classes.
14 Each inconsistency will be considered in turn and is supported
15 by the record.
16 Zhu gave inconsistent evidence about his church attendance
17 in the United States, testifying that he began attending a U.S.
18 church “once a week” in October 2010, but submitting a
19 certificate showing regular attendance beginning in May 2012.
20 Zhu’s explanation, that the certificate he submitted was the
21 version he had renewed in 2012, is not one the fact-finder was
3
1 compelled to credit because it directly conflicted with the
2 language of the certificate. Majidi v. Gonzales, 430 F.3d 77,
3 80 (2d Cir. 2005).
4 Zhu’s testimony was further undermined by his failure to
5 mention that he attended church in the United States in his
6 asylum application or supporting documents—particularly as his
7 application was filed nine months after he joined a U.S. church.
8 Zhu argues here that his application only discussed past
9 persecution because he believed it was the most important aspect
10 of his claim. The agency was not compelled to credit this
11 explanation, as his continuing practice was what would cause
12 him fear of future harm. Id.; see also Xiu Xia Lin, 534 F.3d
13 at 166 n.3.
14 Zhu’s credibility was further undermined by discrepancies
15 between his and his wife’s testimony. As the agency found, Zhu
16 stated that his wife was not at his baptism, but his wife
17 testified that she was. Zhu’s explanation that his wife was
18 present but not participating did not actually explain why Zhu
19 testified his wife “did not attend” his baptism. Majidi, 430
20 F.3d at 80. Similarly, Zhu and his wife were in conflict
21 regarding his wife’s religious activities. Zhu’s wife
4
1 testified that she attended five (out of ten) baptism classes,
2 including one the day before the hearing; these classes were
3 held after church services that she attended with Zhu. The
4 agency reasonably concluded that this testimony was not
5 consistent with Zhu’s statement that his wife had not started
6 taking baptism classes. Zhu’s explanation that he did not know
7 is implausible in light of the fact that the classes immediately
8 followed church services they attended together. Id.
9 In addition to the inconsistencies and omission, the
10 agency’s adverse credibility determination finds further
11 support in the demeanor finding. We defer to the conclusion
12 that Zhu’s testimony appeared “coached and memorized,”
13 particularly where, as here, it is supported by the record. See
14 8 U.S.C. § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of
15 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (upholding negative
16 demeanor finding where supported by specific instances of
17 inconsistent testimony). As the IJ pointed out, Zhu was unable
18 to answer questions that departed from the specific testimony
19 he gave.
20 Considering the totality of the circumstances, the IJ’s
21 adverse credibility determination is supported by substantial
5
1 evidence, and the inconsistencies, demeanor problems, and
2 omissions regarding Zhu’s religious practices in the United
3 States cast doubt on the entirety of Zhu’s claim of religious
4 persecution, including his religious practices in China.
5 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (holding
6 that “a single instance of false testimony may . . . infect the
7 balance of the alien’s uncorroborated or unauthenticated
8 evidence”). As all of Zhu’s claims shared the same factual
9 predicate, the adverse credibility determination is
10 dispositive of asylum, withholding of removal, and CAT relief.
11 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O=Hagan Wolfe, Clerk
6