Yiying Zhang v. Garland
Yiying Zhang v. Garland
Opinion
19-3420 Yiying Zhang v. Garland BIA Cassin, IJ A200 695 703 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 17th day of March, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 RICHARD J. SULLIVAN, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 YIYING ZHANG, 14 Petitioner, 15 16 v. 19-3420 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Troy Nader Moslemi, Flushing, NY. 24 25 FOR RESPONDENT: Gerard M. Alexander, Trial 26 Attorney, (Linda S. Wernery, 27 Assistant Director, Office of 28 Immigration Litigation, on the 1 brief), for Brian Boynton, Acting 2 Assistant Attorney General, Civil 3 Division United States Department 4 of Justice, Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Yiying Zhang, a native and citizen of the
10 People’s Republic of China, seeks review of a September 30,
11 2019 decision of the BIA affirming a February 15, 2018
12 decision of an Immigration Judge (“IJ”) denying asylum,
13 withholding of removal, and protection under the Convention
14 Against Torture (“CAT”). In re Yiying Zhang, No. A 200 695
15 703 (B.I.A. Sept. 30, 2019), aff’g No. A 200 695 703 (Immig.
16 Ct. N.Y.C. Feb. 15, 2018). We assume the parties’
17 familiarity with the underlying facts and procedural history.
18 We have reviewed the IJ’s decision as supplemented by
19 the BIA. See Yan Chen v. Gonzales,
417 F.3d 268, 271(2d
20 Cir. 2005). We review the adverse credibility determination
21 for substantial evidence. See
8 U.S.C. § 1252(b)(4)(B); Hong
22 Fei Gao v. Sessions,
891 F.3d 67, 76(2d Cir. 2018).
23 “Considering the totality of the circumstances, and all
2 1 relevant factors, a trier of fact may base a credibility
2 determination on the demeanor, candor, or responsiveness of
3 the applicant. . . , the consistency between the applicant’s
4 or witness’s written and oral statements . . . , the internal
5 consistency of each such statement, [and] the consistency of
6 such statements with other evidence of record . . . without
7 regard to whether an inconsistency, inaccuracy, or falsehood
8 goes to the heart of the applicant’s claim.” 8 U.S.C.
9 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
10 determination unless, from the totality of the circumstances,
11 it is plain that no reasonable fact-finder could make such an
12 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
13 F.3d 162, 167(2d Cir. 2008); accord Hong Fei Gao,
891 F.3d 14at 76. The agency’s determination that Zhang was not
15 credible as to her claims that she was detained and fined for
16 spreading her Christian religion and forced to have an
17 abortion under China’s family planning policy is supported by
18 substantial evidence.
19 As an initial matter, the agency reasonably relied on
20 Zhang’s statements at her airport and credible fear
21 interviews. We examine reliance on such interviews “with
3 1 care,” but where, as here, the interview records contain
2 sufficient indicia of reliability, they may be considered.
3 Ming Zhang v. Holder,
585 F.3d 715, 724–25 (2d Cir. 2009).
4 Zhang does not dispute that the credible fear interview bears
5 indicia of reliability, and we conclude that the airport
6 interview also was sufficiently reliable because the record
7 of the airport interview “is typewritten, signed by
8 petitioner, and initialed by her on each page” and “contains
9 no indication that the alien was reluctant to reveal
10 information or did not understand English or the translations
11 provided by the interpreter.”
Id.at 721–22 (cleaned up).
12 Given the reliability of these records, the agency
13 appropriately gave considerable weight to Zhang’s omission of
14 her family planning policy claim at both her airport and
15 credible fear interviews. See
id. at 726(upholding adverse
16 credibility determination based on applicant’s failure to
17 mention forced abortions at both airport and credible fear
18 interviews). At her credible fear interview, Zhang was asked
19 several open-ended questions about why she sought protection
20 in the United States, including whether she had “ever been
21 mistreated” by anyone in China. It is irrelevant whether
4 1 Zhang knew that her forced abortion could be the basis of an
2 asylum claim at this time because she was not asked whether
3 she had a legally cognizable claim; she was asked general
4 questions about mistreatment and her reasons for fearing
5 return to China and expressed fear only of being arrested,
6 detained, and fined for spreading her religious beliefs.
7 Inconsistencies in Zhang’s own statements and between
8 her testimony and that of her witnesses further support the
9 adverse credibility determination. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii). Zhang made an affirmative statement
11 at her airport interview that she was baptized in China, but
12 later testified that she was baptized only in the United
13 States. In addition, Zhang’s testimony about the days she
14 went to the church differed from the testimony of her church
15 witness, and the IJ was not compelled to credit Zhang’s
16 explanation that she mentioned only the days she attended
17 services, not the days she went to the church to clean. See
18 Majidi v. Gonzales,
430 F.3d 77, 80–81 (2d Cir. 2005) (“A
19 petitioner must do more than offer a plausible explanation
20 for his inconsistent statements to secure relief; he must
21 demonstrate that a reasonable fact-finder would be compelled
5 1 to credit his testimony.” (internal quotation marks and
2 citation omitted)). And Zhang and her husband gave
3 inconsistent testimony about where her husband and son lived.
4 The omission and inconsistencies constitute substantial
5 evidence for the adverse credibility determination. See Hong
6 Fei Gao,
891 F.3d at 76; Xiu Xia Lin, 534 F.3d at 165–66.
7 That determination is dispositive of Zhang’s asylum,
8 withholding of removal, and CAT claims because they were based
9 on the same factual predicate. See Paul v. Gonzales, 444
10 F.3d 148, 156–57 (2d Cir. 2006). We do not reach Zhang’s
11 arguments regarding her son because she did not include him
12 on appeal to the BIA. See Lin Zhong v. U.S. Dep’t of Justice,
13
480 F.3d 104, 117-25(2d Cir. 2007) (holding that we generally
14 require petitioner to exhaust all issues before the BIA).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court
6
Reference
- Status
- Unpublished