Zhu v. Barr BIA Vomacka, IJ A206 071 167

18-108
Zhu v. Barr
BIA
Vomacka, IJ
A206 071 167
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 28
th
day of January, two thousand twenty. 4
5
PRESENT: 6
RICHARD C. WESLEY, 7
PETER W. HALL, 8
DENNY CHIN, 9
Circuit Judges. 10
_____________________________________ 11
12
DAOPING ZHU, 13
14
Petitioner, 15
16
v. 18-108 17
NAC 18
WILLIAM P. BARR, UNITED STATES 19
ATTORNEY GENERAL, 20
21
Respondent. 22
_____________________________________ 23
24
FOR PETITIONER: Joan Xie, Esq., New York, NY. 25
26
FOR RESPONDENT: Joseph H. Hunt, Assistant 27
Attorney General; Linda S. 28
Wernery, Assistant Director; 29
Gerald M. Alexander, Trial 30
Attorney, Office of Immigration 31
Litigation, United States 32

2

Department of Justice, Washington, 1
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 Daoping Zhu, a native and citizen of China, 8
seeks review of a December 29, 2017, decision of the BIA 9
affirming an April 24, 2017, decision of an Immigration Judge 10
(“IJ”) denying Zhu’s application for asylum, withholding of 11
removal, and relief under the Convention Against Torture 12
(“CAT”). In re Daoping Zhu, No. A
206 071 167 (B.I.A. Dec. 13
29, 2017), aff’g No. A
206 071 167 (Immig. Ct. N.Y. City Apr. 14
24, 2017). We assume the parties’ familiarity with the 15
underlying facts and procedural history in this case. 16
We have reviewed the IJ’s decision as modified by the 17
BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 18
520, 522 (2d Cir. 2005). The applicable standards of review 19
are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei 20
Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing 21
adverse credibility determinations for substantial evidence). 22

3

“Considering the totality of the circumstances, and all 1
relevant factors, a trier of fact may base a credibility 2
determination on . . . the inherent plausibility of the 3
applicant’s . . . account, the consistency between the 4
applicant’s . . . written and oral statements . . . , the 5
internal consistency of each such statement, [and] the 6
consistency of such statements with other evidence of record 7
. . . without regard to whether an inconsistency, inaccuracy, 8
or falsehood goes to the heart of the applicant’s claim . . 9
. .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an 10
IJ’s credibility determination unless, from the totality of 11
the circumstances, it is plain that no reasonable fact-finder 12
could make such an adverse credibility ruling.” Xiu Xia Lin 13
v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 14
Gao, 891 F.3d at 76. Because Zhu’s asylum claim is based on 15
his involvement with the U.S. Committee of the Democratic 16
Party of China (“DPC”) while in the United States, he was 17
required to “make some showing that authorities in [China] 18
are either aware of his activities or likely to become aware 19
of his activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 20
143 (2d Cir. 2008). Substantial evidence supports the 21

4

agency’s determination that Zhu was not credible as to his 1
claim that he will be persecuted in China on account of his 2
support for the DPC while in the United States. 3
The agency reasonably relied on several inconsistencies 4
among Zhu’s testimony, application, and documentary evidence 5
concerning Chinese officials’ alleged contacts with his wife. 6
Zhu claimed that Chinese officials visited his wife multiple 7
times to question her about his activities in the United 8
States and that she was detained and interrogated overnight 9
on one occasion. But his wife’s letter only referenced one 10
visit. There were further inconsistencies, in that (1) his 11
wife indicated both that the visit occurred shortly before 12
she wrote the letter in January 2017 and that she believed 13
she had been under surveillance for months following the visit 14
and (2) Zhu testified both that such visits usually occurred 15
in June near the anniversary of the Tiananmen Square protests 16
and that the incident occurred in January because the visits 17
often coincided with the Chinese New Year. These 18
inconsistencies cast doubt on a central component of Zhu’s 19
claim: whether Chinese officials were in fact aware of his 20
Democratic activities in the United States. See Hongsheng 21

5

Leng, 528 F.3d at 143. Zhu did not provide a compelling 1
explanation for these inconsistencies. See Majidi v. 2
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 3
do more than offer a plausible explanation for . . . 4
inconsistent statements to secure relief; he must demonstrate 5
that a reasonable fact-finder would be compelled to credit 6
his testimony.” (internal quotations omitted)). 7
The adverse credibility determination is bolstered by 8
the IJ’s findings that the plausibility of Zhu’s claim was in 9
question. See 8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan 10
v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (“It is well 11
settled that, in assessing the credibility of an asylum 12
applicant’s testimony, an IJ is entitled to consider whether 13
the applicant’s story is inherently implausible.”). The IJ’s 14
findings are sufficiently tethered to the record. See Siewe 15
v. Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (An 16
implausibility finding that is based on “speculation that 17
inheres in inference is not ‘bald’ if the inference is made 18
available to the factfinder by record facts, or even a single 19
fact, viewed in the light of common sense and ordinary 20
experience.”). First, Zhu’s wife’s letter alleging that she 21

6

was interrogated was suspect as the letter arrived just weeks 1
before the merits hearing, did not corroborate earlier 2
visits, and did not mention the Chinese New Year despite Zhu’s 3
explanation that his wife sent the letter as a holiday 4
greeting. Second, Zhu obtained English translations of 5
notarial certificates from China of his marriage certificate 6
and his, his wife’s, and his son’s birth certificates in 2011. 7
Despite having obtained the certificate in 2011, which was 8
two years before he joined the DPC, when questioned about it, 9
he initially explained that he acquired the documents to 10
prepare an asylum case. The timing of this evidence thus 11
indicated that Zhu may have fabricated his claim. See Y.C. 12
v. Holder, 741 F.3d 332, 338 (2d Cir. 2013) (expressing 13
concern about ease of manufacturing claims based on political 14
activities undertaken only in the United States). 15
The agency also reasonably found that Zhu’s remaining 16
documentary evidence failed to rehabilitate his credibility. 17
“An applicant’s failure to corroborate his or her testimony 18
may bear on credibility, because the absence of corroboration 19
in general makes an applicant unable to rehabilitate 20
testimony that has already been called into question.” Biao 21

7

Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The 1
photographs purportedly showing Zhu’s DPC activities 2
conflicted with his testimony regarding the date of his 3
swearing in and were suspect because photographs purportedly 4
taken only a few apart hours showed him wearing different 5
clothing. 6
Given these problems with Zhu’s testimony and documents, 7
substantial evidence supports the adverse credibility 8
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 9
Lin, 534 F.3d at 167. Although the agency relied on two 10
inconsistencies that are not supported by the record 11
concerning the contents of DPC flyers and Zhu’s discovery of 12
the DPC, we determine that those errors do not require remand. 13
See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 14
(2d Cir. 2006) (holding that remand is futile when this Court 15
can “confidently predict” that the agency would reach the 16
same decision absent any errors). The adverse credibility 17
determination is dispositive of asylum, withholding of 18
removal, and CAT relief because all three forms of relief are 19
based on the same factual predicate. See Paul v. Gonzales, 20
444 F.3d 148, 156-57 (2d Cir. 2006). 21

8

For the foregoing reasons, the petition for review is 1
DENIED. All pending motions and applications are DENIED and 2
stays VACATED. 3
FOR THE COURT: 4
Catherine O’Hagan Wolfe, 5
Clerk of Court 6