Rui Zhang v. Eric Holder, Jr., U. S. Attorn , 354 F. App'x 170 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 18, 2009
No. 09-60268 Charles R. Fulbruge III
Summary Calendar Clerk
RUI DE ZHANG,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of
the Board of Immigration Appeals
No. A88 057 014
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Rui De Zhang, a native and citizen of China, petitions for a review of the
decision of the Board of Immigration Appeals (BIA), dismissing his appeal from
an immigration judge’s (IJ’s) decision that pretermitted his application for
asylum as untimely and denied his application for withholding of removal and
relief under the Convention Against Torture (CAT). The BIA concluded that
there was no clear error in the IJ’s adverse credibility finding against Zhang and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-60268
that Zhang failed to meet his burden to establish eligibility for relief. In this
petition, Zhang argues that the IJ’s adverse credibility decision was not
supported by the evidence in the record and accordingly, his application for
withholding of removal should have been granted. For the following reasons, the
petition for review is denied.
DISCUSSION
On a petition for review of a BIA decision, we review the order of the BIA,
but we also consider the IJ’s underlying decision if it influenced the BIA's
determination. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). We review
whether factual findings are supported by substantial evidence and we review
questions of law de novo. Lopez–Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.
2001) (per curiam).
Because Zhang filed his asylum claim after May 11, 2005, the REAL ID
Act provides the relevant credibility determination standards. See 8 U.S.C.
§ 1158(b)(1)(B)(ii)–(iii); REAL ID Act § 101, Pub.L. 109-13, 119 Stat. 231, 302–05
(May 11, 2005) (“[A] trier of fact may base a credibility determination on . . . the
consistency between the applicant’s . . . written and oral statements . . . , the
internal consistency of each such statement, the consistency of such statements
with other evidence . . . , and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency . . . goes to the heart of the
applicant’s claim . . . .”); Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009)
(applying the REAL ID Act standard). An adverse credibility determination is
a finding of fact that we review under the substantial evidence standard. See
Vidal v. Gonzales, 491 F .3d 250, 254 (5th Cir. 2007). “The substantial evidence
standard requires only that the BIA’s decision be supported by record evidence
and be substantially reasonable.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th
Cir. 2002). “Reversal is improper unless we decide not only that the evidence
supports a contrary conclusion, but also that the evidence compels it.” Chen v.
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No. 09-60268
Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (quoting Zhao v. Gonzales, 404
F.3d 295, 306 (5th Cir. 2005)). Here, Zhang bears the “burden of showing that
the evidence is so compelling that no reasonable factfinder could reach a
contrary conclusion.” Id.Zhang fails to meet this standard. The IJ’s findings regarding numerous
discrepancies in Zhang’s testimony are sufficient to support the IJ’s adverse
credibility determination: Zhang’s testimony regarding the date of his marriage
is inconsistent; his testimony regarding the length of his alleged hiding from
Chinese “family planning” officials is inconsistent; his testimony regarding the
alleged sterilization of his wife is inconsistent; and his testimony regarding the
“family planning” fine imposed after the birth of his child is inconsistent.
Further, Zhang’s attempt to clarify this inconsistent testimony was unpersuasive
because it did not explain the discrepancies in his testimony and, in and of itself,
was contradictory.
Although Zhang alleges that the testimony is actually consistent and
supports his overall application for withholding, the discrepancies found by the
IJ and BIA remain. “[I]t is the factfinder’s duty to make determinations based
on the credibility of the witnesses,” and “[w]e cannot substitute our judgment for
that of the BIA or IJ with respect to . . . factual findings based on credibility
determinations.” Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam). As
such, we determine that the evidence in the record does not compel us to reverse
the IJ’s adverse credibility determination. Accordingly, Zhang failed to meet his
burden to demonstrate that he is eligible for withholding of removal. See INS v.
Elias–Zacarias, 502 U.S. 478, 483–84 (1992).
CONCLUSION
For the foregoing reasons, the petition for review is DENIED.
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