18

- 2512 Zhang v. Barr BIA Conroy , IJ A 095 725 165 

### 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 ELE CTRONIC DATABASE (WITH THE NOTATION**  **“ SUMMARY ORDER**  **” ). A**  **PARTY CITING TO 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** 1 **for the Second Circuit, held at the Thurgood**  **Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **6 t**  **h da**  **y of S**  **e p**  **t e**  **m b**  **e r**  **, two thousand**  **twenty .**  4 5 **PRESENT:** 6 **JON O. NEWMAN ,**  ***** 7 **JOSEPH F. BIANCO ,**  8 **WILLIAM J. NARDINI ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **LINGHUA ZHANG ,**  13 **Petitioner ,**  14 15
**v. 18** 
**- 2512**  16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES**  18 **ATTORNEY GENERAL ,**  19 **Respondent .**  20

**_____________________________________** 21 22 **FOR PETITIONER :**  Theodore N. Cox, Esq. , New York , 23 NY

. 24 25

* Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable. Circuit Judge Jon O. Newman has replaced Judge Hall on the panel for this matter. See 2d Cir. IOP E(b).2 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 1 General ; Holly M. Smith , Senior 2 Litigation Counsel ; David Kim , 3 Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, D C. 7
UPON DUE CONSIDERATION of this petition for review of a 8
Board of Immigration Appeals (“BIA”) decision, it is hereby 9
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 10

is DENIED

. 11

Petitioner Linghua Zhang , a native and citizen of the 12
People’s Republic of China , seeks review of a July 31, 2018 13

decision of the BIA affirming a September 8, 2017 decision of 14
an Immigration Judge (“IJ”) , which denied Zhang’s application 15
for asylum, withholding of removal, and relief under the 16

Convent ion Against Torture (“CAT”). In re Linghua Zhang , No. 17

A 095 725 165 (B.I.A. July 31, 2018 ), aff’g No. A 095 725 165 18
(Immig. Ct. N.Y. City Sept. 8, 2017 ). We assume the parties’ 19
familiarity with the underlying facts and procedural history. 20
We have reviewed both the IJ’s and the BIA’s opinions 21
“for the sake of completeness.” Wangchuck v. Dep’t of 22

Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The 23

standards of review are well established. See 8 U.S.C. 24

§ 1252(b)(4); Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d 253 Cir. 2018); Y.C. v. Holder , 741 F.3d 324, 332 (2d Cir. 2013). 1
Credibility 2
The agency may, “[ c]onsidering the totality of the 3
circumstances . . . base a credibility determination on the 4
demeanor, candor, or responsiveness of the applicant,” the 5
“inherent plausibility” of her account, and inconsistencies 6

in her statements or between her statements and other 7

ev idence, without regard to whether they go “to the heart of 8
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “ We 9
defer . . . to an IJ’s credibility determination unless .

. . 10
it is plain that no reasonable fact

- finder could make such an 11

adverse cred ibility ruling.” Xiu Xia Lin v. Mukasey , 534 12
F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao , 891 F.3d 13

at 76. Substantial evidence supports the agency’s 14
determination that Zhang was not credible. 15
First, the agency reasonably relied on an inconsistency 16
in Zhang’s testimony regarding whether she had ever possessed 17
documentation of her encounters with the police i n China. 18

She testified that she had been issued documents related to 19
her interactions with the police in China and lost them when 20
she lost her cell phone , but later testified that she did not 21

ever have those documents, and that she only had pictures of 224 ch urch gatherings. The agency was not required to accept her 1
explanation that she misunderstood the initial question. See 2
Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A 3
petitioner must do more than offer a plausible explanation 4

for his inconsistent statements to secure relief; he must 5

demonstrate that a reasonable fact

- finder would be compelled 6
to credit his testimony.” ( internal quotation marks omitted) 7
(quoting Zhang v. U.S. I.N.S. , 386 F.3d 66, 76 (2d Cir. 8

2004) ) ). 9
Second, the agency reasonably found implausible Zhang’s 10
testimony that she did not know the name of any of her former 11
pastors. We defer to the agency’s implausibility findings 12
so long as they are “tethered to record evidence, and there 13
is nothing else in the record from which a firm conviction of 14
error could properly be derived.” Wensheng Yan v. Mukasey , 15
509 F.3d 63, 67 (2d Cir. 2007). The agency reasonably found 16
Zhang’s explanation that many of her former pastors were 17
elderly or deceased un satisfactory. Even crediting her 18

earlier statement that members of her community did not refer 19
to elderly people by their names out of respect, she claimed 20
only that “man y” of the pastors were elderly, s he did not 21
offer the title that she referred to the pastors by when asked 225 for a name, and the fact that some of her pastors are now 1
deceased does not explain why she would not know their names, 2
especially given the role tha t that the church allegedly 3
played in her life. Certified Administrative Record (“CAR”) 4

at 121. 5
Third, the agency made a negative demeanor finding, 6
describing Zhang as “nervous” when questioned about issues 7
beyond the scope of her written statement. CAR at 63. 8
Nervousness does not necessarily imply untruthfulness, but 9
the appearance that testimony is memorized or scripted does 10
undermine credibility. Cf. Shu Wen Sun v. BIA , 510 F.3d 377, 11
381 (2d Cir. 2007) (deferring to IJ’s finding that “petitioner 12

was evasive and non

- responsive in a manner that suggested 13
untruthfulness, rather than nervousness or difficulty 14
comprehending the proceedings”); see also Majidi , 430 F.3d at 15

81 n.1 (affording particular deference to demeanor finding 16
because IJ “is in the best position to discern, often at a 17
glance, . . . whether a witness who hesitated in a response 18
was nevertheless attempting truthfully to recount what he 19
recalled of key events or struggling to remember the lines of 20
a carefully crafted ‘script’” (quoting Zhang , 386 F.3d at 21

73) ). A s noted above, Zhang testified inconsistently 226 regarding the nature of the evidence she allegedly lost with 1
her cell phone and could not name any of her former pastors

— 2

both of which were issues that she had not addressed in her 3

written statement. 4
Finally, the agency reasonably concluded that the absence 5
of reliable corroborating evidence further undermined Zhang’s 6
credibility. An asylum applicant’s failure to corroborate 7
her testimony may bear on her credibility “because the absence 8
of corroboration in general makes an applicant unable to 9
rehabilitate testimony that has already been called into 10
question.” Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 11
2007). Zhang did not present any contemporaneous 12

documentation of her church attendance in China or her 13
encounters with the police

. The letters from her churches 14
in China and the United States corroborated her religious 15
practi ce, but not her claims of past persecution. The only 16
evidence corroborating Zhang’s claims of past abuse was 17

letters from her friends and family, which the agency 18
reasonably accorded little weight because they were authored 19
by interested witnesses unavail able for cross

- examination. 20

S ee In re H

- L

- H

- & Z

- Y

- Z

- , 25 I. & N. Dec. 209, 215 (B

. I

. A

. 21
2010) (finding that unsworn letters from the applicant’s 227 friends and family did not provide substantial support for 1
the applicant’s claims because they were from interested 2
witnesses not subject to cross

- examination), overruled on 3
other grounds by Hui Lin Huang v. Holder , 677 F.3d 130, 133

– 4
38 (2d Cir. 2012); see also Y.C. v. Holder , 741 F.3d 324, 334 5
(2d Cir. 2013) (deferring to agency’s decision to give little 6
weight to letter from applicant’s spouse in China). 7
Accordingly, given the inconsistency, imp lausibility, 8
and demeanor findings, and the absence of reliable 9
corroborating evidence, the agency’s adverse credibility 10
determination is supported by substantial evidence. See 8 11

U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 12

Future Persecution 13
Absent past persecution, an applicant may prevail on an 14
asylum claim by demonstrating that she subjectively fears 15
future persecution and that this fear is objectively 16

reasonable. Ramsameachire v. Ashcroft , 357 F.3d 169, 178 (2d 17
Cir. 2004). A n applicant can show that a fear is objectively 18

reasonable by establishing either a “reasonable possibility 19
. . . she would be singled out individually for persecution,” 20
or a “pattern or practice” of persecution of “persons 21
similarly situated” to her. 8 C .F.R. 228 § 1208.13(b)(2)(iii) (A) ; see also Y.C. , 741 F.3d at 332; In 1

re A

- M

- , 23 I. & N. Dec. 737, 741 (B

. I

. A

. 2005) (defining a 2
pattern or practice of persecution as the “systemic or 3
pervasive” persecution of a group). Where the claim is based 4
on activities undertaken after the applicant’s arrival in the 5
United States, this requires “some showing that authoritie s 6
in [her] country of nationality are (1) aware of [her] 7
activities or (2) likely to become aware of [her] activities.” 8
Hongsheng Leng v. Mukasey , 528 F.3d 135, 13 8 (2d Cir. 2008). 9

A “ fear may be well

- founded even if there is only a slight, 10
though discernible, chance of persecution.” Diallo v. INS, 11
232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza

12

Fonseca , 480 U.S. 421, 431 (1987)). But a fear is not 13
objectively reasonable if it lacks “solid support” in the 14
record and is merely “speculative at best.” Jian Xing Huang 15

v. U.S. INS , 421 F.3d 125, 129 (2d Cir. 2005). 16
Although the agency credited Zhang’s claim that she 17
practices Christianity in the United States, it reasonably 18

concluded that she did not hav e an objectively reasonable 19
fear of future persecution on that basis. Zhang did not 20
claim that the Chinese government was aware of her religious 21
practice in the United States and, other than the testimony 229 that the agency found not credible and the letters to which 1
the agency reasonably assigned minimal weight, Zhang’s claim 2
that the Chinese government knew or would learn of her 3
religious practice in China was based only on country

4
conditions evidence regarding the treatment of Christians. 5
Accordingly, her argument is that she will attend an 6
underground church in China, that there is a reasonable 7
possibility that the Chinese government will learn of that 8
attendance and persecute her as a result, and that she 9
established that possibility by showing a pattern or practice 10

of persecution of similarly situated Christians. See 11
Hongsheng Leng , 528 F.3d at 142

– 43. 12
Zhang argues that she satisfied her burden to demonstrate 13
an objectively reasonable fear of future persecution, but she 14
does not identify any evidence in the record that supports 15

this claim , and t he agency reasonably concluded that she 16

failed to make that showing. First, as the BIA emphasized, 17
Zhang failed to provide any evidence of the persecution of 18
similarly situated individuals. Moreover, as the IJ found, 19

the record reflects that there are an estimated 68 million 20
Protestants in China, only 23 million of whom are affiliated 21
with a government

- sanctioned church. See CAR at 242 (U.S. 2210 State Dept. 2015 Int’l Religious Freedom Rep.). While the 1
agency did not discuss all the evidence in the record, it 2

gave “ reasoned consideration to the petition, and made 3

ad equate findings,” and it did not need to “expressly parse 4
or refute on the record each individual argument or piece of 5
evidence offered by the petitioner.” Zhi Yun Gao v. Mukasey , 6
508 F.3d 86, 87 (2d Cir. 2007) (internal quotation marks 7

omitted ) ( quoting Wang v. Bd. of Immigration Appeals , 437 8
F.3d 270, 275 (2d Cir. 2006) )

. A review of the record shows 9

that there is significant regional variation in the treatment 10
of members of unsanctioned religious groups in C hina, and 11

does not establish a pattern or practice of persecuti on of 12
underground church members in Zhang’s native Fujian Province. 13
See Jian Hui Shao v. Mukasey , 546 F.3d 138, 149, 169

– 70 (2d 14
Cir. 2008) (finding no error in the agency’s requirement that 15
an applicant demonstrate a well

- founded fear of persecution 16
specific to Fujian Province when persecutory acts in China 17
vary according to province ). 18
In sum, Zhang did not meet her burden for asylum because 19
she did not present credible evid ence that she suffered past 20
harm or was at risk of being singled out for future harm, and 21
she did not establish that there is a pattern or practice of 2211 persecuting Christians who attend underground churches in 1

China. See 8 U.S.C. § 1158(b)(1)(B); 8 C.F.R. 2

§ 1208.13(b)(1), (2). Because Zhang failed to meet her 3
burden for asylum, she “necessarily” failed to meet the higher 4
standards for withholding of removal and CAT relief. See 5
Lecaj v. Holder , 616 F.3d 111, 119 (2d Cir. 2010). 1 6
For the foregoing reasons , the petition for review is 7

DENIED

. All pending motions and applications are DENIED and 8

stays VACATED. 9

FOR THE COURT: 10 Catherine O ’ Hagan Wolfe , 11 Clerk of Court 12

1 Because these findings are dispositive, we do not reach the agency’s alternative findings that Zhang did not satisfy her burden of proof because she failed to present reasonably available corroborating evidence of her past harm and that she waived her CAT claim.