Zhimiao Wu v. Sessions
699 F. App'x 24
| 2d Cir. | 2017Background
- Wu is a native and citizen of China seeking asylum, withholding of removal, and CAT relief, with BIA affirming IJ denial.
- The IJ denied asylum as untimely, finding Wu failed to file within one year or show changed/extraordinary circumstances.
- The IJ also found Wu not convincingly credible on timeliness and relied on specific inconsistencies.
- Wu argued the agency erred by weighing a letter from his brother-in-law and by not giving him a credibility presumption on appeal.
- The Board affirmed the IJ, and Wu petitioned for review in the Second Circuit, challenging the one-year bar and well-founded fear grounds.
- The court reviews for substantial evidence on factual findings and de novo on questions of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the asylum application was timely filed | Wu contends timely filing was shown by surrounding circumstances | Agency correctly found untimely due to lack of timely filing and no qualifying exceptions | Denied: untimeliness sustained; no reviewable constitutional claims raised |
| Whether Wu demonstrated well-founded fear of future persecution as a Christian | Wu argues underground church activity and proselytizing support fear | China's conditions do not show pattern or individual persecution; evidence insufficient | Denied: no objectively reasonable well-founded fear established |
| Whether withholding of removal and CAT relief fail given lack of asylum success | If asylum denied, other relief should be considered | Without asylum, higher bar for withholding/CAT remains unmet | Denied: derivative relief claims fail as asylum fails |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (review completeness and standard for substantial evidence)
- Y.C. v. Holder, 741 F.3d 324 (2d Cir. 2013) (factual findings reviewed for substantial evidence; law de novo)
- Boluk v. Holder, 642 F.3d 297 (2d Cir. 2011) (weight given to evidence is a factual determination)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (defers to agency credibility determinations where specific inconsistencies are cited)
- Zaman v. Mukasey, 514 F.3d 233 (2d Cir. 2008) (explicit credibility findings supported by specific reasons)
- Santoso v. Holder, 580 F.3d 110 (2d Cir. 2009) (pattern-or-practice claim denied where violence not countrywide)
- Jian Xing Huang v. U.S. INS, 421 F.3d 125 (2d Cir. 2005) (absence of solid support makes fear speculative)
- Tambadou v. Gonzales, 446 F.3d 298 (2d Cir. 2006) (well-founded fear assessment in context of country conditions)
- Lecaj v. Holder, 616 F.3d 111 (2d Cir. 2010) (asylum entails greater likelihood of persecution than eligibility for asylum)