Opinion
20-1670 NAC
07-07-2022
ZHONG HAI WU, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Norman Kwai Wing Wong, Esq., New York, NY. FOR RESPONDENT: Bryan Boynton, Acting Deputy Assistant Attorney General; Anthony P. Nicastro, Assistant Director, Kristen H. Blosser, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
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 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of July, two thousand twenty-two.
FOR PETITIONER: Norman Kwai Wing Wong, Esq., New York, NY.
FOR RESPONDENT: Bryan Boynton, Acting Deputy Assistant Attorney General; Anthony P. Nicastro, Assistant Director, Kristen H. Blosser, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: JOSE A. CABRANES, DENNY CHIN, STEVEN J. MENASHI, Circuit Judges.
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.
Petitioner Zhong Hai Wu, a native and citizen of the People's Republic of China, seeks review of a May 14, 2020, decision of the BIA affirming a May 11, 2018, decision of an Immigration Judge ("IJ") denying Wu's application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). In re Zhong Hai Wu, No. A206 583 497 (B.I.A. May 14, 2020), aff'g No. A206 583 497 (Immig. Ct. N.Y. City May 11, 2018). We assume the parties' familiarity with the underlying facts and procedural history.
We have considered both the IJ's and the BIA's opinions "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) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary."). "[W]e review the agency's decision for substantial evidence and must defer to the factfinder's findings based on such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal quotation marks omitted); see also 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, or inconsistencies within and between an applicant's statements and other evidence, "without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor." 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 factfinder 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 given inconsistencies between Wu's and his wife's testimony concerning the circumstances surrounding his alleged arrest and detention for attending an underground Christian church in China. See 8 U.S.C. § 1158(b)(1)(B)(iii). Wu and his wife were inconsistent about (1) when she knew he was attending an underground church, with Wu testifying she did not know until he was arrested and his wife testifying he told her before that, (2) whether she accompanied him to a clinic after he was arrested and beaten and whether he saw a doctor, with Wu testifying he went alone and did not see a doctor and his wife testifying she was with him and he saw a doctor, (3) whether she tried to visit him in jail, with his wife stating in her affidavit that she did try to visit and Wu testifying that she did not, and (4) whether he came home alone after his detention (his testimony) or with a group of friends (his wife's testimony). These inconsistencies provide substantial evidence for the agency's conclusion that Wu's claim of past persecution was not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) ("[E]ven a single inconsistency might preclude an alien from showing that an IJ was compelled to find him credible. Multiple inconsistencies would so preclude even more forcefully.").
Wu also failed to show a well-founded fear of future persecution on account of his practice of Christianity in the United States. Absent a credible claim of past persecution, he had no evidence that the authorities would be aware of his practice of Christianity or would single him out for persecution. See Jian Liang v. Garland, 10 F.4th 106, 117 (2d Cir. 2021) (finding no evidence of individualized risk given adverse credibility determination); Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)("[T]o establish a well-founded fear of persecution in the absence of any evidence of past persecution, an alien must make some showing that authorities in his country of nationality are either aware of his activities or likely to become aware of his activities"). Accordingly, Wu had to show a pattern or practice of persecution of Christians. Jian Liang, 10 F.4th at 117 (holding that, absent credible testimony of an "individualized risk of persecution . . . petition hinges on whether [applicant] has shown a pattern or practice . . . of persecuting Christians"). Wu did not meet his burden because his evidence showed that conditions for Christians vary throughout China, and he did not present evidence that Chinese authorities had a practice of targeting individuals attending underground churches in Wu's home province of Zhejiang. See id.
Wu's failure to state a credible claim of past persecution or to demonstrate a well-founded fear of persecution is dispositive of his asylum, withholding of removal, and CAT protection claims because all three claims were based on the same factual predicate. Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010) (holding that an applicant's failure to show the possibility of persecution for asylum means the applicant "necessarily fails to demonstrate the clear probability of future persecution required for withholding of removal, and the more likely than not to be tortured standard required for CAT relief." (quotation marks omitted); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (acknowledging that adverse credibility determination is dispositive where asylum, withholding of removal, and CAT relief are based on the same factual predicate).
We do not reach Wu's argument that he will be tortured as an "illegal emigrant" if he returns to China because he did not raise that issue before the IJ or sufficiently argue it before the BIA. See Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir. 2015) ("[T]he BIA may refuse to consider an issue that could have been, but was not, raised before an IJ."); Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122-23 (2d Cir. 2007) (holding that we usually do not review issues not raised to the BIA, in part, because our review is limited to the reasons given by the BIA); Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (finding claim abandoned where brief addressed it in only a "single conclusory sentence").
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.