19-2345 Zhuang v. Garland BIA Loprest, IJ A205 444 743

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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of March, two thousand twenty-one. 5 6 PRESENT: 7 DENNIS JACOBS, 8 GUIDO CALABRESI, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 LIFEN ZHUANG, 14 Petitioner, 15 16 v. 19-2345 17 NAC 18 MERRICK B. GARLAND, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent.* 21 _____________________________________ 22 23 FOR PETITIONER: James A. Lombardi, Esq., New 24 York, NY.

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 2 FOR RESPONDENT: Joseph H. Hunt, Assistant 3 Attorney General; Holly M. Smith, 4 Senior Litigation Counsel; Nehal 5 H. Kamani, Trial Attorney, Office 6 of Immigration Litigation, United 7 States Department of Justice, 8 Washington, DC. 9 10 UPON DUE CONSIDERATION of this petition for review of a

11 Board of Immigration Appeals (“BIA”) decision, it is hereby

12 ORDERED, ADJUDGED, AND DECREED that the petition for review

13 is DENIED.

14 Petitioner Lifen Zhuang, a native and citizen of the

15 People’s Republic of China, seeks review of a July 2, 2019,

16 decision of the BIA affirming a January 8, 2018, decision of

17 an Immigration Judge (“IJ”) denying Zhuang’s application for

18 withholding of removal. In re Lifen Zhuang, No. A205 444 743

19 (B.I.A. July 2, 2019), aff’g No. A205 444 743 (Immig. Ct.

20 N.Y. City Jan. 8, 2018). We assume the parties’ familiarity

21 with the underlying facts and procedural history.

22 Under the circumstances, we have considered both the

23 IJ’s and the BIA’s opinions “for the sake of completeness.”

24 Wangchuck v. Dep’t of Homeland Security,

, 528

25 (2d Cir. 2006). The applicable standards of review are

26 well established. See

(b)(4)(B); Hong Fei

2 1 Gao v. Sessions,

(2d Cir. 2018). Contrary

2 to the Government’s contention, Zhuang’s brief sufficiently

3 challenges the agency’s adverse credibility determination.

4 “Considering the totality of the circumstances, and all

5 relevant factors, a trier of fact may base a credibility

6 determination on the demeanor, candor, or responsiveness of

7 the applicant or witness, the inherent plausibility of the

8 applicant’s or witness’s account, the consistency between the

9 applicant’s or witness’s written and oral statements . . . ,

10 [and] the internal consistency of each such statement . . .

11 without regard to whether an inconsistency, inaccuracy, or

12 falsehood goes to the heart of the applicant’s claim, or any

13 other relevant factor.”

(b)(1)(B)(iii); see

14 also Xiu Xia Lin v. Mukasey,

, 163–64 (2d Cir.

15 2008). “We defer . . . to an IJ’s credibility determination

16 unless, from the totality of the circumstances, it is plain

17 that no reasonable fact-finder could make such an adverse

18 credibility ruling.” Xiu Xia Lin,

; accord

19 Hong Fei Gao,

. Substantial evidence supports

20 the agency’s determination that Zhuang was not credible as to

21 her claim that she was persecuted under China’s family

22 planning policy.

3 1 The IJ found that Zhuang gave the impression that she

2 was testifying from memorization rather than experience and

3 that she was often unresponsive. See 8 U.S.C.

4 § 1158(b)(1)(B)(iii); Majidi v. Gonzales,

, 81 n.1

5 (2d Cir. 2005) (recognizing that particular deference is

6 given to the trier of fact’s assessment of demeanor). That

7 finding is supported by the record, which shows that Zhuang

8 testified clearly and concisely on direct examination but

9 became hesitant and unresponsive on cross-examination and

10 gave the impression that she was delaying and attempting to

11 provide correct answers rather than those based on

12 experience. Accordingly, we afford “particular deference”

13 to the IJ’s demeanor finding. Jin Chen v. U.S. Dep’t of

14 Justice,

(2d Cir. 2005).

15 The IJ’s demeanor finding and adverse credibility

16 determination as a whole were further supported by Zhuang’s

17 inconsistent statements regarding when she worked in the

18 United States and why she was unable to get friends to

19 translate her son’s school records. See 8 U.S.C.

20 § 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dep’t of

21 Justice,

(2d Cir. 2006) (“We can be still

22 more confident in our review of observations about an

4 1 applicant’s demeanor where, as here, they are supported by

2 specific examples of inconsistent testimony.”). Her changing

3 answers in this regard gave the impression of a willingness

4 to alter her story to gain relief.

5 Having questioned Zhuang’s credibility, the agency

6 reasonably relied further on her failure to rehabilitate her

7 testimony with reliable corroborating evidence. See Biao

8 Yang v. Gonzales,

(2d Cir. 2007) (“An

9 applicant’s failure to corroborate his or her testimony may

10 bear on credibility, because the absence of corroboration in

11 general makes an applicant unable to rehabilitate testimony

12 that has already been called into question.”). As the IJ

13 noted, Zhuang did not submit evidence corroborating her claim

14 that she hid from family planning officials at her aunt’s

15 house and her U.S. medical records were incomplete and did

16 not corroborate her claim of a forced abortion in China.

17 The demeanor, inconsistency, and corroboration findings

18 constitute substantial evidence supporting the adverse

19 credibility determination. See 8 U.S.C.

20 § 1158(b)(1)(B)(iii). Notwithstanding other inconsistency

21 findings that may not be supported by the record, that

22 determination was dispositive of withholding of removal. See

5 1 Paul v. Gonzales,

, 156–57 (2d Cir. 2006). We

2 do not consider Zhuang’s unexhausted argument that she was

3 limited in her testimony about her past persecution claim.

4 See Lin Zhong v. U.S. Dep’t of Justice,

,

5 122-24 & n.1 (2d Cir. 2007).

6 For the foregoing reasons, the petition for review is

7 DENIED. All pending motions and applications are DENIED and

8 stays VACATED.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court

6