18-2512

Zhang v. Barr

BIA

Conroy, IJ

A095 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 ELECTRONIC 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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 16th 4 day of September, two thousand twenty.

5

6 PRESENT:

7 JON O. NEWMAN,*

8 JOSEPH F. BIANCO,

9 WILLIAM J. NARDINI,

10 Circuit Judges.

11 _____________________________________

12

13 LINGHUA ZHANG,

14 Petitioner,

15

16 v. 18-2512

17 NAC

18 WILLIAM P. BARR, UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Theodore N. Cox, Esq., New York, 

24 NY.

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

1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

2 General; Holly M. Smith, Senior 

3 Litigation Counsel; David Kim, 

4 Trial Attorney, Office of 

5 Immigration Litigation, United 

6 States Department of Justice, 

7 Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a 

9 Board of Immigration Appeals (“BIA”) decision, it is hereby 

10 ORDERED, ADJUDGED, AND DECREED that the petition for review 

11 is DENIED.

12 Petitioner Linghua Zhang, a native and citizen of the 

13 People’s Republic of China, seeks review of a July 31, 2018

14 decision of the BIA affirming a September 8, 2017 decision of 

15 an Immigration Judge (“IJ”), which denied Zhang’s application 

16 for asylum, withholding of removal, and relief under the 

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

18 A 095 725 165 (B.I.A. July 31, 2018), aff’g No. A 095 725 165

19 (Immig. Ct. N.Y. City Sept. 8, 2017). We assume the parties’ 

20 familiarity with the underlying facts and procedural history.

21 We have reviewed both the IJ’s and the BIA’s opinions 

22 “for the sake of completeness.” Wangchuck v. Dep’t of 

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

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

25 § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 
3

1 Cir. 2018); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). 

2 Credibility

3 The agency may, “[c]onsidering the totality of the 

4 circumstances . . . base a credibility determination on the 

5 demeanor, candor, or responsiveness of the applicant,” the 

6 “inherent plausibility” of her account, and inconsistencies 

7 in her statements or between her statements and other 

8 evidence, without regard to whether they go “to the heart of 

9 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 

10 defer . . . to an IJ’s credibility determination unless . . . 

11 it is plain that no reasonable fact-finder could make such an 

12 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 

13 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d 

14 at 76. Substantial evidence supports the agency’s 

15 determination that Zhang was not credible.

16 First, the agency reasonably relied on an inconsistency 

17 in Zhang’s testimony regarding whether she had ever possessed 

18 documentation of her encounters with the police in China. 

19 She testified that she had been issued documents related to 

20 her interactions with the police in China and lost them when 

21 she lost her cell phone, but later testified that she did not 

22 ever have those documents, and that she only had pictures of 
4

1 church gatherings. The agency was not required to accept her 

2 explanation that she misunderstood the initial question. See 

3 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 

4 petitioner must do more than offer a plausible explanation 

5 for his inconsistent statements to secure relief; he must 

6 demonstrate that a reasonable fact-finder would be compelled

7 to credit his testimony.” (internal quotation marks omitted)

8 (quoting Zhang v. U.S. I.N.S., 386 F.3d 66, 76 (2d Cir. 

9 2004))).

10 Second, the agency reasonably found implausible Zhang’s 

11 testimony that she did not know the name of any of her former 

12 pastors. We defer to the agency’s implausibility findings 

13 so long as they are “tethered to record evidence, and there 

14 is nothing else in the record from which a firm conviction of 

15 error could properly be derived.” Wensheng Yan v. Mukasey, 

16 509 F.3d 63, 67 (2d Cir. 2007). The agency reasonably found 

17 Zhang’s explanation that many of her former pastors were 

18 elderly or deceased unsatisfactory. Even crediting her 

19 earlier statement that members of her community did not refer 

20 to elderly people by their names out of respect, she claimed 

21 only that “many” of the pastors were elderly, she did not 

22 offer the title that she referred to the pastors by when asked 
5

1 for a name, and the fact that some of her pastors are now 

2 deceased does not explain why she would not know their names, 

3 especially given the role that that the church allegedly 

4 played in her life. Certified Administrative Record (“CAR”)

5 at 121.

6 Third, the agency made a negative demeanor finding, 

7 describing Zhang as “nervous” when questioned about issues 

8 beyond the scope of her written statement. CAR at 63. 

9 Nervousness does not necessarily imply untruthfulness, but 

10 the appearance that testimony is memorized or scripted does 

11 undermine credibility. Cf. Shu Wen Sun v. BIA, 510 F.3d 377, 

12 381 (2d Cir. 2007) (deferring to IJ’s finding that “petitioner 

13 was evasive and non-responsive in a manner that suggested 

14 untruthfulness, rather than nervousness or difficulty 

15 comprehending the proceedings”); see also Majidi, 430 F.3d at 

16 81 n.1 (affording particular deference to demeanor finding 

17 because IJ “is in the best position to discern, often at a 

18 glance, . . . whether a witness who hesitated in a response 

19 was nevertheless attempting truthfully to recount what he 

20 recalled of key events or struggling to remember the lines of 

21 a carefully crafted ‘script’” (quoting Zhang, 386 F.3d at 

22 73)). As noted above, Zhang testified inconsistently 
6

1 regarding the nature of the evidence she allegedly lost with 

2 her cell phone and could not name any of her former pastors—

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

4 written statement. 

5 Finally, the agency reasonably concluded that the absence 

6 of reliable corroborating evidence further undermined Zhang’s 

7 credibility. An asylum applicant’s failure to corroborate 

8 her testimony may bear on her credibility “because the absence 

9 of corroboration in general makes an applicant unable to 

10 rehabilitate testimony that has already been called into 

11 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 

12 2007). Zhang did not present any contemporaneous 

13 documentation of her church attendance in China or her 

14 encounters with the police. The letters from her churches 

15 in China and the United States corroborated her religious 

16 practice, but not her claims of past persecution. The only 

17 evidence corroborating Zhang’s claims of past abuse was 

18 letters from her friends and family, which the agency 

19 reasonably accorded little weight because they were authored 

20 by interested witnesses unavailable for cross-examination. 

21 See In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A.

22 2010) (finding that unsworn letters from the applicant’s 
7

1 friends and family did not provide substantial support for 

2 the applicant’s claims because they were from interested 

3 witnesses not subject to cross-examination), overruled on 

4 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–

5 38 (2d Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324, 334 

6 (2d Cir. 2013) (deferring to agency’s decision to give little 

7 weight to letter from applicant’s spouse in China). 

8 Accordingly, given the inconsistency, implausibility, 

9 and demeanor findings, and the absence of reliable 

10 corroborating evidence, the agency’s adverse credibility 

11 determination is supported by substantial evidence. See 8 

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

13 Future Persecution

14 Absent past persecution, an applicant may prevail on an 

15 asylum claim by demonstrating that she subjectively fears 

16 future persecution and that this fear is objectively 

17 reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d 

18 Cir. 2004). An applicant can show that a fear is objectively 

19 reasonable by establishing either a “reasonable possibility 

20 . . . she would be singled out individually for persecution,” 

21 or a “pattern or practice” of persecution of “persons 

22 similarly situated” to her. 8 C.F.R. 
8

1 § 1208.13(b)(2)(iii)(A); see also Y.C., 741 F.3d at 332; In 

2 re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005) (defining a 

3 pattern or practice of persecution as the “systemic or 

4 pervasive” persecution of a group). Where the claim is based 

5 on activities undertaken after the applicant’s arrival in the 

6 United States, this requires “some showing that authorities 

7 in [her] country of nationality are (1) aware of [her] 

8 activities or (2) likely to become aware of [her] activities.” 

9 Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008). 

10 A “fear may be well-founded even if there is only a slight, 

11 though discernible, chance of persecution.” Diallo v. INS,

12 232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza13 Fonseca, 480 U.S. 421, 431 (1987)). But a fear is not 

14 objectively reasonable if it lacks “solid support” in the 

15 record and is merely “speculative at best.” Jian Xing Huang 

16 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).

17 Although the agency credited Zhang’s claim that she 

18 practices Christianity in the United States, it reasonably 

19 concluded that she did not have an objectively reasonable 

20 fear of future persecution on that basis. Zhang did not 

21 claim that the Chinese government was aware of her religious 

22 practice in the United States and, other than the testimony 
9

1 that the agency found not credible and the letters to which

2 the agency reasonably assigned minimal weight, Zhang’s claim 

3 that the Chinese government knew or would learn of her 

4 religious practice in China was based only on country5 conditions evidence regarding the treatment of Christians. 

6 Accordingly, her argument is that she will attend an 

7 underground church in China, that there is a reasonable 

8 possibility that the Chinese government will learn of that 

9 attendance and persecute her as a result, and that she 

10 established that possibility by showing a pattern or practice 

11 of persecution of similarly situated Christians. See 

12 Hongsheng Leng, 528 F.3d at 142–43. 

13 Zhang argues that she satisfied her burden to demonstrate 

14 an objectively reasonable fear of future persecution, but she 

15 does not identify any evidence in the record that supports 

16 this claim, and the agency reasonably concluded that she

17 failed to make that showing. First, as the BIA emphasized, 

18 Zhang failed to provide any evidence of the persecution of 

19 similarly situated individuals. Moreover, as the IJ found, 

20 the record reflects that there are an estimated 68 million 

21 Protestants in China, only 23 million of whom are affiliated 

22 with a government-sanctioned church. See CAR at 242 (U.S. 
10

1 State Dept. 2015 Int’l Religious Freedom Rep.). While the 

2 agency did not discuss all the evidence in the record, it 

3 gave “reasoned consideration to the petition, and made 

4 adequate findings,” and it did not need to “expressly parse 

5 or refute on the record each individual argument or piece of 

6 evidence offered by the petitioner.” Zhi Yun Gao v. Mukasey, 

7 508 F.3d 86, 87 (2d Cir. 2007) (internal quotation marks 

8 omitted) (quoting Wang v. Bd. of Immigration Appeals, 437 

9 F.3d 270, 275 (2d Cir. 2006)). A review of the record shows 

10 that there is significant regional variation in the treatment 

11 of members of unsanctioned religious groups in China, and 

12 does not establish a pattern or practice of persecution of 

13 underground church members in Zhang’s native Fujian Province. 

14 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 149, 169–70 (2d 

15 Cir. 2008) (finding no error in the agency’s requirement that 

16 an applicant demonstrate a well-founded fear of persecution 

17 specific to Fujian Province when persecutory acts in China 

18 vary according to province).

19 In sum, Zhang did not meet her burden for asylum because 

20 she did not present credible evidence that she suffered past 

21 harm or was at risk of being singled out for future harm, and 

22 she did not establish that there is a pattern or practice of 
11

1 persecuting Christians who attend underground churches in 

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

3 § 1208.13(b)(1), (2). Because Zhang failed to meet her 

4 burden for asylum, she “necessarily” failed to meet the higher 

5 standards for withholding of removal and CAT relief. See 

6 Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010).1

7 For the foregoing reasons, the petition for review is 

8 DENIED. All pending motions and applications are DENIED and 

9 stays VACATED.

10 FOR THE COURT: 

11 Catherine O’Hagan Wolfe,

12 Clerk of Court

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.