21-6480 Zhang v. Garland BIA Sponzo, IJ A208 919 460

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of February, two thousand twenty-four.

PRESENT: SUSAN L. CARNEY, WILLIAM J. NARDINI, EUNICE C. LEE, Circuit Judges. _____________________________________

ZHENG CAI ZHANG, Petitioner,

v. 21-6480 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Thomas V. Massucci, Esq., New York, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Julie Iversen, Senior Litigation Counsel; Lindsay Marshall, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Zheng Cai Zhang, a native and citizen of the People’s Republic of

China, seeks review of an August 2, 2021, decision of the Board of Immigration

Appeals (“BIA”) affirming an October 1, 2018, decision of an Immigration Judge

(“IJ”) denying his application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Zheng Cai Zhang, No. A 208

919 460 (B.I.A. Aug. 2, 2021), aff’g No. A 208 919 460 (Immig. Ct. N.Y. City Oct. 1,

2018). We assume the parties’ familiarity with the case.

We review the IJ’s decision as supplemented by the BIA. See Chen v.

Gonzales,

(2d Cir. 2005). We review the agency’s adverse

credibility determination “under the substantial evidence standard.” Hong Fei

Gao v. Sessions,

(2d Cir. 2018). “[T]he administrative findings of

2 fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.”

(b)(4)(B).

“Considering the totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on . . . the inherent plausibility of

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

witness’s written and oral statements (whenever made and whether or not under

oath, and considering the circumstances under which the statements were made),

. . . the consistency of such statements with other evidence of record . . . , 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,

or any other relevant factor.”

(b)(1)(B)(iii). “We defer . . . to an

IJ’s credibility determination unless, from the totality of the circumstances, it is

plain that no reasonable fact-finder could make such an adverse credibility

ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei

Gao,

. An IJ may base an adverse credibility determination on a

single inconsistency. See Siewe v. Gonzales,

(2d Cir. 2007)

(holding that “a single instance of false testimony may (if attributable to the

petitioner) infect the balance of the alien’s uncorroborated or unauthenticated

3 evidence,” and “[a]n IJ may, either expressly or impliedly, rely on falsus in uno[,

falsus in omnibus, i.e., ‘false in one thing, false in everything,’] to discredit evidence

that does not benefit from corroboration or authentication independent of the

petitioner’s own credibility”). Substantial evidence supports the agency’s

determination that Zhang was not credible as to his claim of past persecution and

fear of future persecution.

The IJ found that Zhang’s claim of past persecution and fear of future

persecution based on political opinion and religion was not credible because of a

single inconsistency or implausibility in Zhang’s narrative. Specifically, Zhang

testified that he was pursued for almost a decade by the village committee for an

unpaid debt of 8,000 renminbi (“RMB”), but also that his wife gave him 30,000

RMB to flee China. Zhang argues that this inconsistency was ancillary to his

claim of religious persecution, that is, it was central only to his family planning

claim, and that the agency did not give him an opportunity to explain it. We

disagree with both arguments.

As an initial matter, the inconsistency goes to the heart of Zhang’s escape

story, which is tied to his claim of religious persecution. That is, although the

8,000 RMB debt to the village committee is not the reason Zhang was allegedly

4 religiously persecuted, Zhang’s testimony that he used 30,000 RMB to escape

quickly after the Chinese authorities’ raid of an underground church service he

was attending does form part of his claim for religious persecution. Hence, any

inconsistency regarding that testimony is not ancillary to the claim of religious

persecution, which Zhang argues is the main reason he fears returning to China.

Furthermore, an IJ does not need to solicit an explanation regarding

inconsistent testimony when the inconsistency is obvious, or “dramatic.” See

Ming Shi Xue v. BIA,

(2d Cir. 2006); Majidi v. Gonzales,

(2d Cir. 2005). Here, Zhang’s claim that the village committee sought

repayment from him every few months since 2006 for 8,000 RMB—which he said

he could not afford to repay—is dramatically inconsistent with his claim that he

was able to immediately gather 30,000 RMB from his wife after the police raided

the underground church service, which he promptly used to flee across the

country and eventually to the United States. As such, the IJ was not required to

solicit further explanation from Zhang before relying on the inconsistency to make

an adverse credibility finding.

For similar reasons, the agency’s finding that it was “implausible” that

Zhang would go almost a decade without repaying the 8,000 RMB,

5 “notwithstanding continued collection efforts by the village committee every few

months” and his sudden ability to have “access to 30,000 RMB to finance his

journey to the United States,” is supported by substantial evidence. Certified

Administrative Record at 4. If the “IJ’s finding is tethered to record evidence, and

there is nothing else in the record from which a firm conviction of error could

properly be derived,” we will not disturb an implausibility finding. Yan v.

Mukasey,

(2d Cir. 2007). Here, when “viewed in the light of

common sense and ordinary experience,” Siewe,

, Zhang’s testimony

supports the IJ’s conclusion that it is implausible that Zhang would not repay the

debt when he had access to almost four times the amount he owed and not paying

the debt allegedly subjected Zhang to a level of persecution that gave rise to a basis

for asylum.

Taken together, the inconsistent and implausible testimony provides

substantial evidence for the agency’s adverse credibility determination. See Ye v.

Dep’t of Homeland Sec.,

(2d Cir. 2006). The adverse credibility

determination is dispositive of asylum, withholding of removal, and CAT relief

because all three forms of relief were based on the same facts. See Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

6 For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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

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