     15-128
     Zhu v. Lynch
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 029 995
                         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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   14th day of November, two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            BARRINGTON D. PARKER,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   XIU WEN ZHU,
14            Petitioner,
15
16                  v.                                               15-128
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Zhou Wang, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; John W.
27                                       Blakeley,    Assistant     Director;
28                                       Katharine    E.    Clark,     Senior
29                                       Litigation Counsel; Madeline E.
30                                       Dang,   Law    Clerk,   Office    of
31                                       Immigration    Litigation,    United
32                                       States   Department   of    Justice,
33                                       Washington, D.C.
1          UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DISMISSED IN PART and DENIED IN PART.

5          Petitioner Xiu Wen Zhu, a native and citizen of China, seeks

6    review of a December 22, 2014, decision of the BIA affirming

7    an August 1, 2013, decision of an Immigration Judge (“IJ”)

8    denying Zhu’s application for asylum, withholding of removal,

9    and relief under the Convention Against Torture (“CAT”).             In

10   re Xiu Wen Zhu, No. A205 029 995 (B.I.A. Dec. 22, 2014), aff’g

11   No. A205 029 995 (Immig. Ct. N.Y. City Aug. 1, 2013).        We assume

12   the   parties’   familiarity   with   the   underlying   facts      and

13   procedural history in this case.

14         We have reviewed the IJ’s decision as modified by the BIA.

15   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

16   (2d Cir. 2005).    The applicable standards of review are well

17   established.      8 U.S.C.   § 1252(b)(4)(B);    Xiu   Xia    Lin   v.

18   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

19   I.    Asylum

20   We dismiss Zhu’s petition as it relates to the agency’s

21   pretermission of his asylum application as untimely.         An asylum

22   application must be filed within one year of an applicant’s

23   arrival in the United States, absent changed or extraordinary

                                     2
1    circumstances.       8 U.S.C. § 1158(a)(2)(B), (D).               We lack

2    jurisdiction to review a denial of asylum on timeliness grounds.

3    8 U.S.C. § 1158(a)(3).        Although we retain jurisdiction to

4    review “constitutional claims or questions of law,” 8 U.S.C.

5    § 1252(a)(2)(D), Zhu does not raise any such claim.                    He

6    challenges only the credibility determination on which the

7    timeliness ruling was based.         Accordingly, he challenges only

8    factual findings that we do not have jurisdiction to review in

9    this context.      See Xiu Xia Lin, 534 F.3d at 165 (observing that

10   credibility is a factual finding reviewed for substantial

11   evidence).

12   II. Credibility

13         Although     we     cannot   reach        the     adverse     credibility

14   determination in addressing asylum, we have jurisdiction to

15   review it in considering the denial of withholding of removal

16   and CAT relief.      Having done so, we conclude that substantial

17   evidence supports the agency’s decision.

18         For applications like Zhu’s, governed by the REAL ID Act,

19   the   agency       may,    “[c]onsidering         the     totality     of   the

20   circumstances,” base a credibility finding on an applicant’s

21   “demeanor, candor, or responsiveness,” the plausibility of his

22   account,     and    inconsistencies        in     his    or   his    witness’s

23   statements, “without regard to whether” those inconsistencies

                                          3
1    go   “to   the   heart   of   the   applicant’s   claim.”    8   U.S.C.

2    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.              “We

3    defer . . . to an IJ’s credibility determination unless, from

4    the totality of the circumstances, it is plain that no

5    reasonable fact-finder could make such an adverse credibility

 6   ruling.”    Xiu Xia Lin, 534 F.3d at 167.

 7        The credibility determination was properly based on the

 8   extensive inconsistences between the testimony of Zhu and his

 9   “one-year witness” in support of his asylum application, and

10   internal inconsistencies in the witness’s testimony.             See 8

11   U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

12   For example, Zhu testified that he had not seen the witness since

13   April 2010; but the witness testified that Zhu has lived with

14   him in Brooklyn for the past two years.             The witness also

15   testified inconsistently regarding where he was living and

16   working and for how long he had been working in Louisiana; when

17   and how he had been in contact with Zhu just prior to Zhu’s

18   arrival in New York; and what he had done the morning of the

19   hearing.    To the extent that the witness testified that he had

20   been ill and had seen a doctor that morning to account for his

21   inconsistent testimony, the agency reasonably rejected the

22   explanation as there was no supporting evidence and the

23   testimony was inconsistent with prior testimony.            See Majidi

                                          4
1    v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

2    do more than offer a plausible explanation for his inconsistent

3    statements to secure relief; he must demonstrate that a

4    reasonable   fact-finder    would       be   compelled   to   credit   his

5    testimony.” (internal quotation marks omitted)).

6        The credibility determination is further supported by the

7    omission of Zhu’s arrest and detention from his Chinese pastor’s

8    letter.   See Xiu Xia Lin, 534 F.3d at 166-67 & n.3 (“An

9    inconsistency and an omission are . . . functionally equivalent”

10   for credibility purposes).     The letter states that Zhu attended

11   church activities and passionately spread the Gospel; however,

12   it says nothing of Zhu’s purported arrest and detention for

13   attending the church.      Although Zhu asserted that his pastor

14   omitted this information because the sole purpose of the letter

15   was to corroborate Zhu’s membership in the underground church,

16   the agency was not required to credit this explanation.                See

17   Majidi, 430 F.3d at 80; Xiu Xia Lin, 534 F.3d at 166-67 & n.3.

18       Zhu does not explicitly challenge the agency’s conclusion

19   that his corroborating evidence was entitled to minimal weight

20   and was therefore insufficient to rehabilitate his credibility.

21   See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)

22   (“Issues not sufficiently argued in the briefs are considered

23   waived and normally will not be addressed on appeal.”).                And

                                         5
1    disregarding this waiver, the agency did not err in concluding

2    that the lack of reliable corroboration further undermined

3    Zhu’s credibility.   Biao Yang v. Gonzales, 496 F.3d 268, 273

4    (2d Cir. 2007) (recognizing that “[a]n applicant’s failure to

5    corroborate his . . . testimony may bear on credibility, because

6    the absence of corroboration in general makes an applicant

7    unable to rehabilitate testimony that has already been called

8    into question” or is viewed as suspicious).            The agency

9    reasonably gave minimal weight to the letters from Zhu’s mother,

10   friend, and fellow church member in China on the ground that

11   they were from interested witnesses not subject to cross

12   examination.   See Matter of H-L-H- & Z-Y- Z-, 25 I. & N. Dec.

13   209, 215 (B.I.A. 2010), rev’d on other grounds by Hui Lin Huang

14   v. Holder, 677 F.3d 130 (2d Cir. 2012).

15       Based on the foregoing inconsistencies, omission, and

16   insufficient corroboration, the totality of the circumstances

17   supports the credibility determination.    Xiu Xia Lin, 534 F.3d

18   at 167.   Zhu’s challenge to the credibility determination is

19   that even if the testimony on the one-year issue was entirely

20   fabricated, it should have no bearing on the remaining testimony

21   and evidence in support of his claim.   We disagree.    See Siewe

22   v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“In the

23   immigration context, corroborating evidence is often limited,

                                    6
1    and the petitioner’s credibility is almost always crucial.     So

2    a single false document or a single instance of false testimony

3    may (if attributable to the petitioner) infect the balance of

4    the alien’s uncorroborated or unauthenticated evidence.”).

5    Moreover, Zhu ignores that the credibility determination was

6    also based on the omission of his arrest and detention from his

7    Chinese pastor’s letter, which directly related to his main

8    claim of past harm in China.

9        The   credibility    determination     is   dispositive    of

10   withholding of removal and CAT relief because both claims were

11   based on the same factual predicate.   Paul v. Gonzales, 444 F.3d

12   148, 156-57 (2d Cir. 2006).    We therefore deny Zhu’s petition

13   as it relates to the denials of these forms of relief.

14       For the foregoing reasons, the petition for review is

15   DISMISSED IN PART and DENIED IN PART.

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk




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