Zhao v. Lynch , 661 F. App'x 143 ( 2016 )

15-1329
Zhao v. Lynch
BIA
Van Wyke, IJ
A088 345 824
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 29th day of November, two thousand sixteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XIN ZHAO,
14 Petitioner,
15
16 v. 15-1329
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhen Liang Li, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; John S.
27 Hogan, Assistant Director; Laura
28 M.L. Maroldy, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Xin Zhao, a native and citizen of the People’s
6 Republic of China, seeks review of a March 26, 2015, decision
7 of the BIA affirming an October 24, 2013, decision of an
8 Immigration Judge (“IJ”) denying Zhao’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Xin Zhao, No. A088 345 824 (B.I.A. Mar.
11 26, 2015), aff’g No. A088 345 824 (Immig. Ct. N.Y. City Oct.
12 24, 2013). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have considered both the IJ’s and the BIA’s opinions “for
15 the sake of completeness.” Wangchuck v. Dep’t of Homeland
16 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
17 standards of review are well established. See 8 U.S.C.
18 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
19 Cir. 2009).
20 The agency may, in light of “the totality of the
21 circumstances . . . base a credibility determination on the
22 demeanor, candor, or responsiveness of the applicant,” the
23 plausibility of the applicant’s account, and inconsistencies
2
1 in his statements, “without regard to whether” those
2 inconsistencies go “to the heart of the applicant’s claim.” 8
3 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d
4 162, 165 (2d Cir. 2008). Under the “substantial evidence”
5 standard of review, “we defer . . . to an IJ’s credibility
6 determination unless, from the totality of the circumstances,
7 it is plain that no reasonable fact-finder could make such an
8 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
9 The determination against Zhao is sound. Zhao claimed
10 that after being fined by family planning authorities for having
11 a second child, he made extra money by distributing Falun Gong
12 fliers on the street. The IJ cited several inconsistencies and
13 unresponsive answers in finding Zhao not to be credible.
14 The IJ asked Zhao about his interactions with the
15 recipients of the fliers--that is, how Zhao would respond if
16 someone asked why Falun Gong was a good idea. Zhao responded
17 that he would walk away, then described the contents of the
18 fliers, then explained why he saw the value of Falun Gong (though
19 he was not a practitioner), and finally testified that he would
20 tell people that Falun Gong is not an evil organization as
21 charged by the Chinese government. “Drawing inferences from
22 direct and circumstantial evidence is a routine and necessary
23 task of any factfinder.” Siewe v. Gonzales, 480 F.3d 160, 167
3
1 (2d Cir. 2007). The IJ had the discretion to find that Zhao’s
2 nonresponsive and inconsistent answers called into question
3 whether he actually handed out the fliers.
4 Another area of concern related to how Zhao prepared for
5 the risk of distributing fliers for a banned organization.
6 Several times, the IJ asked Zhao how he was instructed to respond
7 if the police questioned him. Zhao responded by describing how
8 he actually answered questions from the police, that he was told
9 to say he got the fliers from the “outside,” and finally, that
10 he could just give any name so long as he did not reveal the
11 source of the fliers. The IJ reasonably found that Zhao’s vague
12 answers to this question eroded his credibility. See Jin Shui
13 Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003), overruled
14 on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494
15 F.3d 296 (2d Cir. 2007).
16 A third area concerned whether Zhao told his parents that
17 he was distributing Falun Gong fliers, and if not, why not.
18 Zhao testified that they learned about it after his arrest, and
19 that he withheld that information from them so that they would
20 not worry. But earlier, Zhao had testified that he did not
21 think it would be serious if he was caught distributing fliers.
22 When the IJ followed up, Zhao said that because he was trying
23 to avoid sterilization, he did not tell many people that he was
4
1 giving out the fliers. Zhao then explained that he distributed
2 the fliers to strangers in a different village. “[I]n
3 assessing the credibility of an asylum applicant’s testimony,
4 an IJ is entitled to consider whether the applicant’s story is
5 inherently implausible.” Wensheng Yan v. Mukasey, 509 F.3d 63,
6 66 (2d Cir. 2007). The IJ expressed reasonable incredulity
7 about Zhao’s story: if he was worried about forced
8 sterilization, why was he handing out fliers to strangers? And
9 if he was handing out fliers to strangers, why hide it from his
10 family?
11 Another problematic area was Zhao’s marital history. He
12 testified that because of the sterilization threat and their
13 desire to have more children, he and his wife divorced and later
14 remarried. He omitted that fact from his asylum application.
15 The IJ was entitled to treat this omission as an inconsistency,
16 particularly given that Zhao’s work for Falun Gong was
17 purportedly rooted in the sterilization threat. Xiu Xia Lin,
18 534 F.3d at 166 n.3 (an “omission in a document submitted to
19 corroborate the applicant’s testimony, like a direct
20 inconsistency between one or more of those forms of evidence,
21 can serve as a proper basis for an adverse credibility
22 determination”). The IJ was not compelled to credit Zhao’s
23 explanation for the omission: that he thought his divorce was
5
1 not important. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2 2005) (explaining that the agency is not required to credit an
3 explanation that is merely plausible or possible).
4 The lack of responsiveness, inconsistencies, and
5 implausibilities of Zhao’s testimony cast doubt on whether he
6 actually distributed Falun Gong fliers or was persecuted for
7 doing so. His asylum, withholding of removal, and CAT claims
8 were based on the same factual predicate, and so the adverse
9 credibility determination was dispositive as to all three. See
10 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O=Hagan Wolfe, Clerk
6