Xin Zhao v. Lynch
661 F. App'x 143
| 2d Cir. | 2016Background
- Petitioner Xin Zhao, a Chinese national, sought asylum, withholding of removal, and CAT protection based on persecution for distributing Falun Gong fliers after being fined under China’s family‑planning policy.
- An Immigration Judge (IJ) denied relief after finding Zhao not credible; the Board of Immigration Appeals (BIA) affirmed on March 26, 2015.
- Key credibility problems cited by the IJ: nonresponsive and inconsistent testimony about how Zhao answered recipients and police, why he hid his activity from family, and omissions in his asylum application regarding a divorce/remarriage.
- Zhao argued that he did distribute fliers and that any omissions or vagueness were harmless or explained (e.g., thought divorce unimportant; hid activity to avoid family worry).
- The government (through the IJ/BIA) argued the inconsistencies, implausibilities, and omissions justified an adverse credibility finding, which defeats all claims that share the same factual predicate.
- The Second Circuit reviewed for substantial evidence and denied Zhao’s petition for review, upholding the adverse credibility determination and denial of all relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ’s adverse credibility finding is supported | Zhao: testimony and explanations suffice; omissions were unimportant or explainable | IJ/BIA: testimony had multiple inconsistencies, nonresponsive answers, and omission in application | Affirmed: substantial evidence supports adverse credibility finding |
| Whether nonresponsive/inconsistent answers about interactions with recipients undercut credibility | Zhao: answers reflected nervousness or memory lapses, not fabrication | IJ: nonresponsiveness and shifting answers made the core conduct (distributing fliers) doubtful | Affirmed: IJ reasonably drew negative inferences from nonresponsive answers |
| Whether vague answers about how Zhao prepared for police questioning undermine his claim | Zhao: provided truthful account of what he actually said to police | IJ: vagueness about instructions (e.g., say they came from “outside,” give any name) eroded believability | Affirmed: IJ permissibly relied on vagueness to question credibility |
| Whether omission of divorce/remarriage from application was a proper basis for disbelief | Zhao: omission was inadvertent or he thought divorce unimportant | IJ/BIA: omission inconsistent with testimony and pertinent to motive for activism | Affirmed: omission was a valid basis for adverse credibility finding |
| Whether adverse credibility disposes asylum, withholding, and CAT claims | Zhao: independent arguments for persecution/torture should be considered | IJ/BIA: all claims rest on same factual predicate (distribution of fliers); once discredited, claims fail | Affirmed: adverse credibility dispositive of all three claims |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (court may consider both IJ and BIA opinions)
- Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (standards of review for immigration appeals)
- Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) (agency may base credibility on inconsistencies, demeanor, plausibility)
- Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) (factfinder may draw reasonable inferences from testimony)
- Jin Shui Qiu v. Ashcroft, 329 F.3d 140 (2d Cir. 2003) (vagueness about police-avoidance steps affects credibility)
- Wensheng Yan v. Mukasey, 509 F.3d 63 (2d Cir. 2007) (IJ may consider inherent implausibility)
- Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005) (agency not required to credit merely plausible explanations)
- Paul v. Gonzales, 444 F.3d 148 (2d Cir. 2006) (adverse credibility can be dispositive for asylum, withholding, and CAT)