Xuifang Zhang v. Sessions
689 F. App'x 10
| 2d Cir. | 2017Background
- Petitioner Xuifang Zhang, a Chinese national, sought asylum, withholding of removal, and CAT protection; an IJ denied relief on May 15, 2015 and the BIA affirmed on July 11, 2016 and denied remand.
- The agency made two alternative dispositive findings: (1) Zhang was not credible based on multiple inconsistencies in her evidence; and (2) she failed to show a well‑founded fear of persecution for her religious practice.
- The BIA also treated Zhang’s filings as a motion to remand and found she failed to present previously unavailable new evidence to justify remand.
- On appeal to the Second Circuit, Zhang (through counsel) did not challenge the agency’s adverse credibility finding or the denial of remand.
- The Second Circuit reviewed the IJ decision as supplemented by the BIA, found the unchallenged dispositive grounds supported the denial, and concluded any unraised arguments were waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adverse credibility determination | Zhang contended her testimony/evidence should be credited (implicit) | Government relied on IJ/BIA finding multiple inconsistencies warranting disbelief | Court upheld denial on waiver; agency reasonably relied on inconsistencies to find Zhang not credible |
| Well‑founded fear of persecution (religion) | Zhang argued she feared persecution for religious practice | Government argued she failed to show a well‑founded fear, given credibility and record gaps | Court deemed claim disposed by adverse credibility and not independently challenged; denial stands |
| Motion to remand for new evidence | Zhang sought remand based on purported new evidence (as construed) | Government argued she failed to submit previously unavailable evidence as required | Court affirmed BIA denial of remand for lack of new, previously unavailable evidence |
| Procedural/briefing waiver | Zhang failed to brief challenges to dispositive findings on appeal | Government invoked waiver rule under Fed. R. App. P. 28 and Second Circuit precedent | Court found issues waived for failure to brief and denied petition on that ground |
Key Cases Cited
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (review of IJ decision as supplemented by BIA)
- Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (issues not argued on appeal are waived)
- Paul v. Gonzales, 444 F.3d 148 (2d Cir. 2006) (adverse credibility can be dispositive of asylum claims)
- Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149 (2d Cir. 2005) (standards for remand based on new evidence)
- Norton v. Sam’s Club, 145 F.3d 114 (2d Cir. 1998) (issues insufficiently argued are waived)
- LNC Invs., Inc. v. Nat’l Westminster Bank, N.J., 308 F.3d 169 (2d Cir. 2002) (manifest injustice exception to waiver)