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ZHUANG v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-03-17No. 19-2345

Summary

Holding. The petition for review is denied and the Board of Immigration Appeals' decision affirming the denial of withholding of removal is affirmed.

Lifen Zhuang, a Chinese citizen, petitioned for review of decisions by an Immigration Judge and the Board of Immigration Appeals denying her application for withholding of removal based on persecution under China's family planning policy. The court applied the established standard of reviewing credibility determinations with deference to the Immigration Judge's findings unless no reasonable fact-finder could reach the same conclusion.

The court found substantial evidence supported the adverse credibility determination against Zhuang. The Immigration Judge observed that Zhuang's testimony appeared rehearsed rather than based on genuine experience, and she became evasive and unresponsive during cross-examination. Additionally, Zhuang gave inconsistent accounts regarding her employment history in the United States and her inability to obtain translated school records for her son. The court afforded particular deference to the Immigration Judge's demeanor observations, which are typically given special weight. Zhuang's failure to provide reliable corroborating evidence—such as documentation of hiding from family planning officials or medical records supporting her forced abortion claim—further undermined her credibility and made rehabilitation of her testimony impossible.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Standard of review for Immigration Judge credibility determinations
  • Weight given to demeanor observations during asylum testimony
  • Effect of inconsistent statements on credibility findings
  • Role of corroborating evidence in rehabilitation of testimony

Procedural posture

Zhuang sought judicial review of the Board of Immigration Appeals' affirmance of an Immigration Judge's denial of her withholding of removal application.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

SUMMARY ORDER

Petitioner Lifen Zhuang, a native and citizen of the Peoples Republic of China, seeks review of a July 2, 2019, decision of the BIA affirming a January 8, 2018, decision of an Immigration Judge (“IJ”) denying Zhuangs application for withholding of removal. In re Lifen Zhuang, No. A205 444 743 (B.I.A. July 2, 2019), affg No. A205 444 743 (Immig. Ct. N.Y. City Jan. 8, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances, we have considered both the IJs and the BIAs opinions “for the sake of completeness.” Wangchuck v. Dept of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). Contrary to the Governments contention, Zhuangs brief sufficiently challenges the agencys adverse credibility determination.

“Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicants or witnesss account, the consistency between the applicants or witnesss written and oral statements ․, [and] the internal consistency of each such statement ․ without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicants claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008). “We defer ․ to an IJs 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, 534 F.3d at 167; accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports the agencys determination that Zhuang was not credible as to her claim that she was persecuted under Chinas family planning policy.

The IJ found that Zhuang gave the impression that she was testifying from memorization rather than experience and that she was often unresponsive. See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular deference is given to the trier of facts assessment of demeanor). That finding is supported by the record, which shows that Zhuang testified clearly and concisely on direct examination but became hesitant and unresponsive on cross-examination and gave the impression that she was delaying and attempting to provide correct answers rather than those based on experience. Accordingly, we afford “particular deference” to the IJs demeanor finding. Jin Chen v. U.S. Dept of Justice, 426 F.3d 104, 113 (2d Cir. 2005).

The IJs demeanor finding and adverse credibility determination as a whole were further supported by Zhuangs inconsistent statements regarding when she worked in the United States and why she was unable to get friends to translate her sons school records. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dept of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident in our review of observations about an applicants demeanor where, as here, they are supported by specific examples of inconsistent testimony.”). Her changing answers in this regard gave the impression of a willingness to alter her story to gain relief.

Having questioned Zhuangs credibility, the agency reasonably relied further on her failure to rehabilitate her testimony with reliable corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicants failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question.”). As the IJ noted, Zhuang did not submit evidence corroborating her claim that she hid from family planning officials at her aunts house and her U.S. medical records were incomplete and did not corroborate her claim of a forced abortion in China.

The demeanor, inconsistency, and corroboration findings constitute substantial evidence supporting the adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii). Notwithstanding other inconsistency findings that may not be supported by the record, that determination was dispositive of withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). We do not consider Zhuangs unexhausted argument that she was limited in her testimony about her past persecution claim. See Lin Zhong v. U.S. Dept of Justice, 480 F.3d 104, 107, 122-24 & n.1 (2d Cir. 2007).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.