Opinion
No. 08-3078-ag.
March 4, 2009.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
FOR PETITIONER: Mei Quan Zhao, Pro Se, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General, Civil Division, Jennifer Levings, Senior Litigation Counsel, Julia J. Tyler, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: HON. JOSéA. CABRANES, HON. ROBERT A. KATZMANN, HON. DEBRA ANN LIVINGSTON, Circuit Judges.
Petitioner Mei Quan Zhao, a native and citizen of the People's Republic of China, seeks review of a May 23, 2008 order of the BIA affirming the July 27, 2006 decision of Immigration Judge ("IJ") Helen J. Sichel denying Zhao's application for asylum and withholding of removal. In re Mei Quan Zhao, No. A79 682 812 (B.I.A. May 23, 2008), aff'g No. A79 682 812 (Immig. Ct. N.Y. City July 27, 2006). We assume the parties' familiarity with the underlying facts and procedural history in this case.
When the BIA adopts and supplements the IJ's decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We construe Zhao's brief so as to raise the strongest arguments that it suggests, as he appears pro se before the Court. See Weixel v. Board of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002).
We conclude that the agency's adverse credibility determination is supported by substantial evidence. First, the IJ reasonably found implausible Zhao's claim that he was a devout Christian who was arrested and beaten by the Chinese government on account of his faith, when he did not attend church services during the considerable lengths of time that he was not living in New York. See Ying Li v. BCIS, 529 F.3d 79, 82 (2d Cir. 2008). While Zhao argues that "[n]othing in the record suggests that I would be able to find and attend my service in a church other than New York City," that argument is unavailing, as it was his burden to establish his claim. See, e.g., Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 115 (2d Cir. 2007). The IJ also did not err in finding that Zhao's failure to corroborate his claim that he was a devout Christian undermined his credibility. See Siewe v. Gonzales, 480 F.3d 160, 169 n. 3 (2d Cir. 2007).
Zhao's argument that the IJ erred in assigning diminished weight to the documents he submitted is similarly unavailing, as the weight afforded to an applicant's evidence in immigration proceedings lies largely within the discretion of the IJ. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 342 (2d Cir. 2006). While Zhao correctly asserts that he should not be required to authenticate documents solely pursuant to the method described in the regulations, see Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 404-05 (2d Cir. 2005), the IJ did not base her findings on Zhao's failure to authenticate the documents he submitted. Rather, she found that none of the letters that he submitted, including those from the church that he purportedly attends in the United States, were sworn statements. Moreover, she found that the letters from his church in the United States were inconsistent — one stated that Zhao "regularly" attended Sunday services since December 2002, while the other stated that Zhao "occasionally" attended Sunday services since June 2003. While Zhao argues that the letters were not inconsistent, the BIA was unpersuaded by that same argument and we are not compelled to disagree. See, e.g., Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (finding that the agency need not credit an applicant's explanations for inconsistencies unless those explanations would compel a reasonable fact-finder to do so).
The BIA also found that letters Zhao submitted from the Changle Christian Association provided inconsistent dates for his baptism — September 2001 and July 2000. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2009) (finding that an adverse credibility finding was supported, in part, by inconsistencies in an applicant's documentary submissions). Zhao's argument that the second letter indicates that he became a member of the church in July 2000, and not that he was baptized at that time, is not compelling. See, e.g., Majidi, 430 F.3d at 80-81. Finally, the agency reasonably found that the testimony of Zhao's sister failed to rehabilitate his testimony.
Because the only evidence of a threat to Zhao's life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). We find no merit in Zhao's argument that the IJ erred in failing to evaluate his CAT claim because his counsel explicitly waived that claim before the IJ. See Hoodhoo v. Holder, 2009 WL 279654 at *6 (2d Cir. Feb. 6, 2009).
For the foregoing reasons, the petition for review is DENIED.