Zhao v. Garland ( 2022 )

19-1687
Zhao v. Garland
BIA
Loprest, IJ
A205 137 807
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.
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 March, two thousand twenty-two.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
MICHAEL H. PARK,
STEVEN J. MENASHI,
Circuit Judges.
_______________________________
KAL ZHAO, AKA KAI ZHAO
Petitioner,
v. 19-1687
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_______________________________
FOR PETITIONER: Yevgeny Samokhleb, Law Offices of
Yevgeny Samokhleb, P.C., New York,
NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Kohsei Ugumori, Senior
Litigation Counsel; David Kim,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Kal Zhao (“Zhao”), a native and citizen of
the People’s Republic of China, seeks review of a May 31,
2019, decision of the BIA, affirming a January 9, 2018,
decision of an Immigration Judge (“IJ”) that denied Zhao’s
application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). In
re Kal Zhao, No. A205 137 807 (B.I.A. May 31, 2019), aff’g
No. A205 137 807 (Immig. Ct. N.Y. City Jan. 9, 2018). We
assume the parties’ familiarity with the underlying facts and
procedural history.
“When the BIA agrees with an IJ’s adverse credibility
determination and adopts particular parts of the IJ’s
reasoning, we review the decisions of both the BIA and the
IJ.” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018)
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(internal quotation marks omitted). “Our review of the IJ’s
decision includes the portions not explicitly discussed by
the BIA.” Id. (alterations and internal quotation marks
omitted).
“[W]e review the agency’s decision for substantial
evidence and must defer to the factfinder’s findings based on
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Singh v. Garland, 11 F.4th
106, 113 (2d Cir. 2021) (internal quotation marks omitted).
“The scope of review under the substantial evidence standard
is exceedingly narrow, and we will uphold the BIA’s decision
unless the petitioner demonstrates that the record evidence
was so compelling that no reasonable factfinder could fail to
find him eligible for relief.” Id. (internal quotation marks
omitted); see 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the
contrary.”).
Under the REAL ID Act of 2005, Pub L. No. 109-13, 119
Stat. 302 (2005), an asylum applicant bears the burden of
satisfying the trier of fact that his testimony is credible.
See 8 U.S.C. § 1158(b)(1)(B)(i), (ii). In making an adverse
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credibility determination, “an IJ may rely on any
inconsistency or omission . . . as long as the ‘totality of
the circumstances’ establishes that an asylum applicant is
not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
Cir. 2008) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The
agency may base a credibility finding on an asylum applicant’s
“demeanor, candor, or responsiveness”; the “inherent
plausibility” of his account; the consistency among his oral
and written statements and other record evidence; and any
internal inconsistencies, inaccuracies, or falsehoods within
such statements, “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s
claim, or any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
determination unless . . . it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin, 534 F.3d at 167.
In determining that Zhao’s testimony was not credible,
the IJ relied on four inconsistencies in Zhao’s testimony and
on his demeanor during his removal hearing. The
inconsistencies and Zhao’s demeanor demonstrate that the IJ’s
adverse credibility determination is supported by substantial
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evidence. See Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d
Cir. 2020) (“[E]ven a single inconsistency might preclude an
alien from showing that an IJ was compelled to find him
credible. Multiple inconsistencies would so preclude even
more forcefully.”).
First, the IJ reasonably relied on an inconsistency
between Zhao’s testimony and an alert generated by the French
Embassy in Thailand (the “Embassy Document”). The Embassy
Document, which the Government submitted to the IJ, contains
scanned images of a counterfeit passport bearing Zhao’s name,
likeness, and personal information and reveals that Zhao was
intercepted at an airport in Bangkok, Thailand on April 6,
2011, while attempting to board a flight to Tehran, Iran.
The Embassy Document directly contradicts Zhao’s testimony
that he left China for the first time in October 2011 when he
traveled to the United States. 1
1The Government asserts that “[w]hen confronted with the
embassy document, [Zhao’s] only response was to deny that he
was in Thailand in April 2011, rather than to attempt to
reconcile the patent inconsistency with his prior testimony.”
Gov. Br. at 28. Although Zhao was questioned at the June 2,
2016, removal hearing about the travel dates provided in the
Embassy Document, it does not appear that he was confronted
with the document itself at that proceeding. In any event,
Zhao does not argue that the IJ failed to afford him an
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Second, the IJ properly relied on an inconsistency
between Zhao’s testimony and an affidavit submitted by his
sister, Qing Zhao (“Qing”), on his behalf prior to the June
2, 2016, removal hearing. At that hearing, Zhao asserted
that none of the witnesses present could corroborate his claim
that he attended church in the United States from 2012 through
2013. In her affidavit, however, Qing (who was present at
the hearing) attempts to corroborate Zhao’s alleged church
attendance by describing it in detail. Zhao’s testimony that
none of the witnesses at his hearing could corroborate his
church attendance is therefore contradicted by Qing’s
presence at the hearing.
Third, the IJ properly concluded that Zhao’s testimony
contradicts the answers that he provided to an asylum officer
during his November 21, 2011, credible fear interview. During
that interview, Zhao claimed that he began attending an
underground Christian house church in China on September 20,
2011, that he was arrested by Chinese authorities on September
22, and that he was then detained for two days before being
opportunity to contest the Embassy Document, and even if he
had, he has “failed to preserve [this issue] for our review”
because he never raised it before the BIA. See Foster v.
INS, 376 F.3d 75, 78 (2d Cir. 2004).
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released. At the June 2, 2016, hearing, however, Zhao
testified that he was arrested on September 20, 2011, and
released on September 22.
Fourth, the IJ reasonably relied on inconsistencies
between Zhao’s testimony and the answers that he provided
upon cross-examination. Zhao testified that he attends a
Christian church in Brooklyn every week and reads the Bible.
Upon cross-examination, however, Zhao demonstrated an
extremely limited knowledge of the Bible. He struggled, for
example, to define the New Testament or to recall a single
biblical story.
Fifth, the IJ properly determined that Zhao’s documentary
evidence fails to corroborate (and, at points, even
undermines) his testimony. For example, Zhao submitted
several photos to corroborate his claim that he regularly
attended a Christian church. But while the photos were taken
in 2010, Zhao testified that he did not convert to
Christianity or begin attending church until September 2011.
Finally, the IJ reasonably relied on Zhao’s demeanor to
conclude that he was not credible. As the IJ explained:
Zhao’s demeanor -- specifically his lack of “candor
or responsiveness,” INA 208(b)(1)(B)(iii) -- also
suggests he lacked credibility. Zhao continually
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asked the interpreter to repeat the questions put
to him and often paused lengthily before answering.
His requests for repetition were sufficiently
frequent for the Immigration Court to take note of
them on the record. His pauses were most notable
after he was confronted with the French Embassy’s
record. Like the behavior of his witness, Qiu,
those aspects of Zhao’s demeanor, when examined as
a whole, went beyond the normal behavior associated
with testifying.
Administrative Record at 99. Because the IJ’s demeanor
finding is grounded in the record, we defer to the IJ’s
finding. See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d
104, 113 (2d Cir. 2005) (“We give particular deference
to . . . the adjudicator’s observation of the applicant’s
demeanor, in recognition of the fact that the IJ’s ability to
observe the witness’s demeanor places her in the best position
to evaluate whether apparent problems in the witness’s
testimony suggest a lack of credibility.”).
For the reasons set forth above, the IJ’s determination
that Zhao was not credible is supported by substantial
evidence in the record. That determination is dispositive of
all three of Zhao’s claims — for asylum, for withholding of
removal, and for protection under the CAT — because they are
based on the same factual predicate: namely, that Zhao is a
practicing Christian who fled China to avoid persecution
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based on his faith. See Hong Fei Gao, 891 F.3d at 76 (“Where
the same factual predicate underlies a petitioner’s claims
for asylum, withholding of removal, and protection under the
CAT, an adverse credibility determination forecloses all
three forms of relief.”); Paul v. Gonzales, 444 F.3d 148, 156
(2d Cir. 2006) (“[W]here a withholding claim is based on the
very fact, or set of facts, that the IJ found not to be
credible, . . . we have routinely decided . . . that a
withholding of removal claim was meritless since the alien’s
asylum claim had failed on adverse credibility grounds.”);
id. at 157 (“[A] petition for CAT relief may fail because of
an adverse credibility ruling rendered in the asylum context
where the factual basis for the alien’s CAT claim was the
same as that rejected in his asylum petition.”). Accordingly,
we do not consider the IJ’s alternative holdings that Zhao
failed to establish that his life or freedom would be
threatened or that he would be tortured if he were removed to
China.
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For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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