Zhou v. Barr BIA Poczter, IJ A208 618 203

17-4081
Zhou v. Barr
BIA
Poczter, IJ
A208 618 203
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.

At a stated term of the United States Court of Appeals 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 5
th
day of February, two thousand twenty. 4
5
PRESENT: 6
ROBERT A. KATZMANN, 7
Chief Judge, 8
JON O. NEWMAN, 9
SUSAN L. CARNEY, 10
Circuit Judges. 11
_____________________________________ 12
13
YULING ZHOU, 14
Petitioner, 15
16
v. 17-4081 17
NAC 18
WILLIAM P. BARR, UNITED STATES 19
ATTORNEY GENERAL, 20
Respondent. 21
_____________________________________ 22
23
FOR PETITIONER: Khagendra Gharti-Chhetry, New 24
York, NY. 25
26
FOR RESPONDENT: Joseph H. Hunt, Assistant 27
Attorney General; Paul Fiorino, 28
Senior Litigation Counsel; Jenny 29
C. Lee, Trial Attorney, Office of 30
Immigration Litigation, United 31
32

2

States Department of Justice, 1
Washington, DC. 2
3
UPON DUE CONSIDERATION of this petition for review of a 4
Board of Immigration Appeals (“BIA”) decision, it is hereby 5
ORDERED, ADJUDGED, AND DECREED that the petition for review 6
is DENIED. 7
Petitioner Yuling Zhou, a native and citizen of the 8
People’s Republic of China, seeks review of a December 1, 9
2017 decision of the BIA affirming an April 3, 2017 decision 10
of an Immigration Judge (“IJ”) denying her application for 11
asylum, withholding of removal, and relief under the 12
Convention Against Torture (“CAT”). In re Yuling Zhou, No. 13
A208 618 203 (B.I.A. Dec. 1, 2017), aff’g No. A208 618 203 14
(Immig. Ct. N.Y. City Apr. 3, 2017). We assume the parties’ 15
familiarity with the underlying facts and procedural history 16
in this case. 17
Under the circumstances of this case, we have reviewed 18
both the IJ’s and the BIA’s opinions “for the sake of 19
completeness.” Wangchuck v. Dep’t of Homeland Security, 448 20
F.3d 524, 528 (2d Cir. 2006). The applicable standards of 21
review are well established. See 8 U.S.C. § 1252(b)(4)(B); 22
Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 23

3

“Considering the totality of the circumstances, and all 1
relevant factors, a trier of fact may base a credibility 2
determination on . . . the consistency between the applicant’s 3
or witness’s written and oral statements . . . , the internal 4
consistency of each such statement, the consistency of such 5
statements with other evidence of record . . . , and any 6
inaccuracies or falsehoods in such statements, without regard 7
to whether an inconsistency, inaccuracy, or falsehood goes to 8
the heart of the applicant’s claim, or any other relevant 9
factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 10
an IJ’s credibility determination unless, from the totality 11
of the circumstances, it is plain that no reasonable fact-12
finder could make such an adverse credibility ruling.” Xiu 13
Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord 14
Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports 15
the agency’s determination that Zhou was not credible. 16
The agency reasonably relied on discrepancies between 17
Zhou’s application and testimony. See 8 U.S.C. 18
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-67. Zhou 19
testified that her mother told her that police officers were 20
looking for her for three to four weeks after she left China, 21
but she did not include this information in her asylum 22

4

application. The agency did not err in relying on this 1
omission. See Hong Fei Gao, 891 F.3d at 78–79 (weight given 2
to an omission depends, in part, on whether “facts are ones 3
that a credible petitioner would reasonably have been 4
expected to disclose under the relevant circumstances”). Nor 5
did the agency err in relying on the omission of this 6
information from her mother or uncle’s letters. While we 7
have held that a third party’s omission is less probative of 8
credibility in a situation where the omission does not create 9
any inconsistency with the applicant’s account, here, the 10
omission deals with facts that one would expect to be included 11
in supporting letters. Id. at 78–79, 81. While Zhou argued 12
that no one told her relatives what to include in their 13
letters, the IJ was not compelled to credit this explanation. 14
See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 15
petitioner must do more than offer a plausible explanation 16
for h[er] inconsistent statements to secure relief; [s]he 17
must demonstrate that a reasonable fact-finder would be 18
compelled to credit [her] testimony.” (internal quotation 19
marks omitted)). 20
The agency also reasonably relied on inconsistencies and 21
omissions relating to whether Zhou left her house to report 22

5

to the police after her release from detention. See 8 U.S.C. 1
§ 1158(b)(i)(B)(iii). Zhu testified on direct that a 2
condition of her release was to report to the police station, 3
and that she reported about 14 times, but she failed to offer 4
this information on cross examination until specifically 5
prompted. Moreover, the letters from Zhou’s mother and uncle 6
did not mention this reporting requirement and thus did not 7
rehabilitate Zhou’s testimony as to either the reporting 8
requirement or the police seeking to locate her after her 9
departure from China. See Biao Yang v. Gonzales, 496 F.3d 10
268, 273 (2d Cir. 2007) (“An applicant’s failure to 11
corroborate his or her testimony may bear on credibility, 12
because the absence of corroboration in general makes an 13
applicant unable to rehabilitate testimony that has already 14
been called into question.”). In addition to the fact that 15
the letters did not corroborate these aspects of Zhou’s 16
testimony, the IJ was not required to credit letters from 17
family members who were unavailable for cross examination. 18
See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (holding 19
that “[w]e defer to the agency’s determination of the weight 20
afforded to an alien’s documentary evidence” and upholding 21
BIA’s decision not to credit letter from spouse in China). 22

6

Given these discrepancies and lack of corroboration, the 1
adverse credibility determination is supported by substantial 2
evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 3
534 F.3d at 167. That determination is dispositive of 4
asylum, withholding of removal, and CAT relief because all 5
three claims were based on the same factual predicate. See 6
Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 7
For the foregoing reasons, the petition for review is 8
DENIED. All pending motions and applications are DENIED and 9
stays VACATED. 10
FOR THE COURT: 11
Catherine O’Hagan Wolfe, 12
Clerk of Court 13
14