Jiao Ling Zhang v. Holder , 483 F. App'x 642 ( 2012 )

11-2801-ag BIA
Zhang v. Holder Schoppert, IJ
A095 716 385
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 25th day of May, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 BARRINGTON D. PARKER,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _____________________________________
13
14 JIAO LING ZHANG, AKA MEI YAN CHEN,
15 Petitioner,
16
17 v. 11-2801-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: John Z. Zhang, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ada Bosque, Senior
28 Litigation Counsel; Yamileth G.
29 Handuber, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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
4 is DENIED.
5 Jiao Ling Zhang, a native and citizen of the People’s
6 Republic of China, seeks review of a June 15, 2011, order of
7 the BIA affirming the August 31, 2009, decision of
8 Immigration Judge (“IJ”) Douglas Schoppert, which denied her
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Jiao
11 Ling Zhang, No. A095 716 385 (B.I.A. June 15, 2011), aff’g
12 No. A095 716 385 (Immig. Ct. N.Y. City Aug. 31, 2009). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 For applications (such as this) governed by the
22 amendments made to the Immigration and Nationality Act by
23 the REAL ID Act of 2005, the agency may, considering the
2
1 totality of the circumstances, base a credibility finding on
2 the applicant’s “demeanor, candor, or responsiveness,” the
3 plausibility of her account, and inconsistencies in her
4 statements, without regard to whether they go “to the heart
5 of the applicant’s claim.” See 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
7 167 (2d Cir. 2008). We will “defer to an IJ’s credibility
8 determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
11 The IJ’s adverse credibility determination is supported
12 by substantial evidence: (1) Zhang’s failure to mention
13 during her credible fear interview the first forcible
14 abortion she allegedly underwent; (2) Zhang’s testimony,
15 contrary to a statement in her asylum application that she
16 was not forcibly subjected to insertion of an intrauterine
17 device; (3) Zhang’s failure to mention during her testimony
18 that family planning officials visited her home after her
19 second abortion, as she asserted in her credible fear
20 interview; and (4) Zhang’s testimony that her boyfriend in
21 the United States was unaware of her flight to the United
22 States, though she stated the opposite during an airport
3
1 interview. Moreover, the IJ reasonably rejected Zhang’s
2 explanations for her inconsistent testimony. See Majidi v.
3 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Given these
4 inconsistencies and omissions in Zhang’s testimony and
5 between her testimony and the documentary evidence, the
6 totality of the circumstances supports the agency’s adverse
7 credibility determination.1 See 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
1
Zhang argues with some force that the discrepancy
in her testimony regarding her child’s date of birth was
obviously explained by her inconsistent use of the lunar
calendar. But, because the totality of the evidence
supports the adverse credibility determination, remand is
not warranted. See Xiu Xia Lin, 534 F.3d at 167; Yanqin
Weng, 562 F.3d at 513.
4