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ZHU v. BARR (2020)

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United States Court of Appeals, Second Circuit.

Zefei ZHU, Petitioner, v. William P. BARR, United States Attorney General, Respondent.


Decided: December 15, 2020

PRESENT: RAYMOND J. LOHIER, JR., JOSEPH F. BIANCO, MICHAEL H. PARK, Circuit Judges. FOR PETITIONER: Yevgeny Samokhleb, Law Offices of Yevgeny Samokhleb, P.C., New York, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Derek C. Julius, Assistant Director; Bernard A. Joseph, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


Petitioner Zefei Zhu, a native and citizen of the People's Republic of China, seeks review of a November 29, 2018, decision of the BIA affirming a December 13, 2017, decision of an Immigration Judge (“IJ”) denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Zefei Zhu, No. A XXX XX5 050 (B.I.A. Nov. 29, 2018), aff'g No. A XXX XX5 050 (Immig. Ct. N.Y. City Dec. 13, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed both the IJ's and the BIA's decisions “for the sake of completeness.” Wangchuck v. Dep't 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) (reviewing adverse credibility determination for substantial evidence).

“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 ․, the inherent plausibility of the applicant's ․ account,” and inconsistencies within and between an applicant's statements “without regard to whether” they go “to the heart of the applicant's claim.” See 8 U.S.C. § 1158(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, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports the adverse credibility determination.

In finding Zhu not credible, the agency reasonably relied on Zhu's inconsistent statements at his credible fear interview and hearing. As an initial matter, we have examined the record of the credible fear interview and find no error in the agency's conclusion that it was sufficiently reliable: the interview was conducted with an interpreter, the questions and answers were recorded in a typewritten document, the questions were designed to elicit details of Zhu's asylum claim, and Zhu's responses indicate that he understood the questions. See Ming Zhang v. Holder, 585 F.3d 715, 723–25 (2d Cir. 2009). The inconsistencies support the adverse credibility determination because Zhu gave specific, but inconsistent dates of his arrest, he was inconsistent as to whether the police called his house every ten days or just once after his release from detention, and he stated at his interview that he left China for the first time in July 2016, but acknowledged at the hearing that he attempted a prior departure, but was turned back when he reached Mexico. See 8 U.S.C. § 1158(b)(1)(B)(iii). Moreover, Zhu testified that the police came to his home after he attended another church gathering after his release from detention, but he failed to mention that in his asylum application. See Xiu Xia Lin, 534 F.3d at 166 (upholding agency's reliance on omissions from prior statements); Ming Zhang, 585 F.3d at 726 (holding that the agency may “draw an adverse inference about petitioner's credibility based, inter alia, on h[is] failure to mention” important details or events in prior statements); see also Hong Fei Gao, 891 F.3d at 78 (holding that “the probative value of a witness's prior silence on particular facts depends on whether those facts are ones the witness would reasonably have been expected to disclose”).

The agency was not required to credit Zhu's explanation that he was nervous, particularly because he gave precise dates for his arrest. See Ming Zhang, 585 F.3d at 722 (“alien's mere recitation that he was nervous or felt pressured during an ․ interview will not automatically prevent the IJ or BIA from relying [on] statements in such interviews when making adverse credibility determinations”). Moreover, as the IJ pointed out, Zhu's answers at the interview were consistent with his testimony in other respects and the inconsistency in the arrest date appeared to be an attempt to reconcile a conflict between the date he gave for his arrest and detention and his later acknowledgement of his first departure from China.

Given the multiple inconsistencies that go to the basis for the claim of persecution, the agency's adverse credibility determination is supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163–64. That determination is dispositive of asylum, withholding of removal, and CAT relief because all three claims are based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

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

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