Li Zhu v. Eric Holder, Jr. ( 2014 )

Case: 13-60188 Document: 00512477036 Page: 1 Date Filed: 12/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60188 December 19, 2013
Summary Calendar
Lyle W. Cayce
Clerk
LI ZHU,
Petitioner
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A 205 201 149
Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM: *
Li Zhu, a native and citizen of China, applied for asylum under the
Immigration and Nationality Act (INA), withholding of removal under the
INA, and relief under the Convention Against Torture (CAT) based on her
religion, her political opinion, and her membership in a particular social group.
The Immigration Judge (IJ) made an adverse credibility finding and
determined that Zhu failed to satisfy her burden of proof for asylum or
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-60188 Document: 00512477036 Page: 2 Date Filed: 12/19/2013
No. 13-60188
withholding of removal under either the INA or the CAT. The IJ alternatively
determined that even if Zhu was credible, she nevertheless failed to satisfy her
burdens of proof. The IJ’s decision was upheld by the Board of Immigration
Appeals (BIA) when it dismissed Zhu’s appeal.
First, Zhu argues that her decision to proceed pro se during her merits
hearing was unknowing and involuntary. We review due process challenges to
immigration proceedings de novo. De Zavala v. Ashcroft, 385 F.3d 879, 883
(5th Cir. 2004). The record reflects that (1) Zhu was initially represented by
counsel, who advised her regarding the nature and purpose of the removal
proceedings as well as her rights during the proceedings; (2) the IJ granted
counsel’s motion to withdraw with Zhu’s consent; and (3) the IJ twice asked
Zhu if she wanted a continuance to retain new counsel, but she indicated that
she would proceed pro se. The BIA found that Zhu was apprised of her right
to counsel and, further, that Zhu failed to show that she was prejudiced by the
lack of counsel.
Zhu fails to identify any evidence supporting her assertion that she did
not understand or was confused about her decision to waive her right to
counsel. Nor does she identify any evidence supporting her assertion that she
was prejudiced by her lack of counsel. In particular, Zhu does not explain what
documentary evidence an attorney would have offered or how that evidence
would have altered the outcome of her case. Accordingly, Zhu has failed to
show that she suffered substantial prejudice by proceeding without counsel.
See Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993); Prichard-Ciriza v.
INS, 978 F.2d 219, 222 (5th Cir. 1992).
Next, Zhu argues that the IJ’s adverse credibility determination was
erroneous. We review questions of law de novo and factual findings for
substantial evidence. Lopez-Gomez v. Aschroft, 263 F.3d 442, 444 (5th Cir.
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No. 13-60188
2001). Under the substantial evidence standard, reversal is improper unless
we decide that the evidence compels a contrary conclusion. Chun v. INS, 40
F.3d 76, 78 (5th Cir. 1994).
In making a credibility determination, the IJ may consider, inter alia,
“the inherent plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s written and oral statements
[and] any inaccuracies or falsehoods in such statements, 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), 1231(b)(3)(C). Because an IJ
“may rely on any inconsistency or omission in making an adverse credibility
determination as long as the totality of the circumstances establishes that an
. . . applicant is not credible,” we must defer to that determination “unless it is
plain that no reasonable factfinder could make” such a ruling. Wang v. Holder,
569 F.3d 531, 538 (5th Cir. 2009) (internal quotation marks and citation
omitted).
The IJ noted the following inconsistencies between Zhu’s narrative
statement and testimony: (1) the date Zhu first attended the underground
church; (2) the frequency with which Zhu attended church meetings; (3) the
date Zhu was arrested; (4) whether Zhu reported to the police station following
her arrest; and (5) whether Zhu attended a different church following her
arrest. Zhu fails to show, as she must to prevail on review, that the record
compels a contrary conclusion. See Chun, 40 F.3d at 78. Because the IJ based
his denial of Zhu’s application on his adverse credibility finding, this court need
not consider Zhu’s arguments regarding the lack of corroborating evidence or
that she proved her eligibility for asylum, withholding of removal under the
INA, and relief under the CAT. See id. at 79.
Accordingly, Zhu’s petition for review is DENIED.
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