Jiang-Zhao v. McHenry

23-6162 Jiang-Zhao v. McHenry BIA Poczter, IJ A209 285 378 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 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. 1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 4th day of February, two thousand 4 twenty-five. [5] 6 PRESENT: 7 PIERRE N. LEVAL, 8 MICHAEL H. PARK, 9 ALISON J. NATHAN, 10 Circuit Judges. 11 _____________________________________ [12] 13 HAO JIE JIANG-ZHAO, 14 Petitioner, [15] 16 v. 23-6162 17 NAC 18 JAMES R. MCHENRY, III, ACTING 19 UNITED STATES ATTORNEY 20 GENERAL, [21] 22 Respondent. 23 _____________________________________ [1] 2 FOR PETITIONER: Thomas V. Massucci, Esq., New York, NY. 3 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 4 Attorney General; Jonathan A. Robbins, 5 Assistant Director; Zoe J. Heller, Senior 6 Litigation Counsel, Office of Immigration 7 Litigation, United States Department of 8 Justice, Washington, DC. 9 UPON DUE CONSIDERATION of this petition for review of a Board of 10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 11 DECREED that the petition for review is DENIED. 12 Petitioner Hao Jie Jiang-Zhao, a native and citizen of the People’s Republic 13 of China, seeks review of a January 27, 2023, decision of the BIA affirming a June 14 5, 2019, decision of an Immigration Judge (“IJ”) denying his application for 15 asylum, withholding of removal, and relief under the Convention Against Torture 16 (“CAT”) and concluding that Jiang-Zhao filed a frivolous asylum application. In 17 re Hao Jie Jiang-Zhao, No. A 209 285 378 (B.I.A. Jan. 27, 2023), aff’g No. A 209 285 378 18 (Immig. Ct. N.Y. City June 5, 2019). We assume the parties’ familiarity with the 19 underlying facts and procedural history. 20 We have considered both the IJ’s and the BIA’s opinions. See Wangchuck v. 21 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the agency’s 22 factual findings under the substantial evidence standard, and we review questions [2] 1 of law de novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 2 “[T]he administrative findings of fact are conclusive unless any reasonable 3 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 4 § 1252(b)(4)(B). 5 Jiang-Zhao challenges only the agency’s conclusion that he filed a frivolous 6 asylum application. “If the Attorney General determines that an alien has 7 knowingly made a frivolous application for asylum and the alien has received 8 notice [of the consequences] . . . , the alien shall be permanently ineligible for” most 9 immigration relief. 8 U.S.C. § 1158 (d)(6); see also id. § 1158(d)(4)(A); 8 C.F.R. 10 § 1208.20; 1 Niang v. Holder, 762 F.3d 251, 253 (2d Cir. 2014) (“A person who makes 11 an application for asylum determined to be frivolous, or deliberately and 12 materially false, is subject to a grave penalty: permanent ineligibility for most 13 forms of relief under the immigration laws.” (quoting Mei Juan Zheng v. Mukasey, [14] 514 F.3d 176, 178 (2d Cir. 2008))). An asylum application is “frivolous if any of its 15 material elements is deliberately fabricated.” 8 C.F.R. § 1208.20 . The BIA has set 16 forth four procedural safeguards that an IJ must follow in rendering frivolousness 1 Citations to 8 C.F.R. § 1208.20 are to the version in effect at the time Jiang-Zhao filed his asylum application in 2017. See Ud Din v. Garland, 72 F.4th 411 , 424 n.3 (2d Cir. 2023) (discussing applicability of amendments to regulations). [3] 1 findings: 2 (1) notice to the alien of the consequences of filing a frivolous 3 application; (2) a specific finding by the Immigration Judge or the 4 Board that the alien knowingly filed a frivolous application; (3) 5 sufficient evidence in the record to support the finding that a material 6 element of the asylum application was deliberately fabricated; and (4) 7 an indication that the alien has been afforded sufficient opportunity 8 to account for any discrepancies or implausible aspects of the claim. [9] 10 Biao Yang v. Gonzales, 496 F.3d 268, 275 (2d Cir. 2007) (quoting Matter of Y-L-, 24 I. 11 & N. Dec. 151, 155 (B.I.A. 2007)); see also 8 U.S.C. § 1158 (d)(4)(A) (requiring notice 12 of consequences of filing frivolous application). 13 Jiang-Zhao does not contest that he received notice of the consequences of 14 filing a frivolous claim or challenge the specificity of the agency’s finding. 15 Accordingly, the only issues are whether he fabricated a material element and was 16 provided an opportunity to explain. 17 The agency reasonably concluded that Jiang-Zhao knowingly filed a 18 frivolous asylum application and that a material element of his application was 19 deliberately fabricated. See 8 C.F.R. § 1208.20 ; Matter of Y-L-, 24 I. & N. Dec. at 156 20 (“[A]n Immigration Judge’s specific finding that a respondent deliberately 21 fabricated a material element of his asylum claim constitutes a finding that he 22 knowingly filed a frivolous asylum application.”). Jiang-Zhao concedes that his [4] 1 detention is a material aspect of his claim, but reiterates his explanation, rejected 2 by the agency, that his parents used a connection and paid a bribe to bail him out 3 for one day to receive medical care and go to the consulate. He argues that the 4 record does not support a finding of deliberate fabrication, but only reflects an 5 omission of this fact from his application. The IJ reasonably concluded that his 6 explanation was implausible, meaning that he fabricated his detention because he 7 could not have been detained in Fujian Province and at the consulate in another 8 province at the same time. See Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007) 9 (“So long as an inferential leap is tethered to the evidentiary record, we will accord 10 deference to the finding.”); Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005) (stating 11 that it is “emphatically not our role” to consider whether the petitioner’s 12 explanation, which the IJ had rejected, is more plausible than the record-supported 13 inference the IJ had drawn). 14 While we have cautioned that “in general omissions are less probative of 15 credibility than inconsistencies created by direct contradictions in evidence and 16 testimony,” the IJ did not err in construing Jiang-Zhao’s late-breaking testimony 17 as an inconsistency. Hong Fei Gao v. Sessions, 891 F.3d 67, 78 (2d Cir. 2018) 18 (quotation marks omitted). Jiang-Zhao’s application implies that he was [5] 1 continuously detained for 15 days. Certified Administrative Record “CAR” at 2 268 (“They took us to the police station by the police car. The police interrogated 3 and takes notes of us separately. . . . [T]he police slapped my face. They want me 4 to sign the record and detained for 15 days. I was released until my family paid 5 the bail.” 2). He testified on direct that he was “locked up in the room for 15 days,” 6 implying that he was detained continuously, and did not mention a furlough for 7 medical care or to go to the consulate. Id. at 119 . And he did not mention a break 8 in detention during his credible fear interview, or at any point until confronted on 9 cross-examination with evidence of his presence at the consulate. Nor did a letter 10 from his father mention a one-day release. Id. at 224 (Ltr.) (“My son was detained 11 for 15 days, interrogated and beaten by the police. Until family paid the bail, then 12 my son was released.”). On this record, we find no error in the IJ’s interpretation. 13 See Siewe, 480 F.3d 168–69. And the alleged detention is a material aspect of his 14 claim. See Ud Din, 72 F.4th at 426 (“[F]alse claims of persecution . . . would 15 naturally tend to influence an IJ in deciding whether to grant asylum and, thus, 16 are properly deemed material.”). [2] Given the context, we read this sentence as stating that he was not released until his parents paid bail at the end of the 15 days. [6] 1 Finally, Jiang-Zhao was afforded a sufficient opportunity to account for the 2 omission. He was asked by counsel for the Department of Homeland Security, 3 his own counsel, and the IJ to explain the omission, i.e., how he could have been 4 fingerprinted at the U.S. consulate during the period that he claimed to be detained 5 by the police. As discussed above, his explanation is not compelling, and the 6 agency did not fail to consider his explanation or otherwise deny him an 7 opportunity to be heard. 8 For the foregoing reasons, the petition for review is DENIED. All pending 9 motions and applications are DENIED and stays VACATED. 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court