1 

12-2100 

Yu v. Lynch 

BIA 

Montante, IJ 

A087 563 591

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.

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

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

13th day of July, two thousand fifteen. 

PRESENT: 

GUIDO CALABRESI,

REENA RAGGI, 

RICHARD C. WESLEY,

Circuit Judges. 

_____________________________________ 

ZHEN WEI YU, 

 Petitioner, 

v. 12-2100 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL,*

 Respondent. 

_____________________________________ 

 

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 

Attorney General Loretta E. Lynch is automatically substituted 

for former Attorney General Eric H. Holder, Jr. as Respondent. 
2 

FOR PETITIONER: Gary J. Yerman, Esq., New York, 

New York. 

FOR RESPONDENT: Stuart F. Delery, Principal Deputy 

Assistant Attorney General; Ada E. 

Bosque, Senior Litigation Counsel; 

Jonathan Robbins, Trial Attorney, 

Office of Immigration Litigation, 

United States Department of Justice, 

Washington, D.C. 

UPON DUE CONSIDERATION of this petition for review of a 

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

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

DENIED. 

 Petitioner Zhen Wei Yu, a native and citizen of China, seeks 

review of an April 30, 2012 decision of the BIA affirming an 

August 10, 2010 decision of an Immigration Judge (“IJ”), denying 

Yu’s application for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). See In re Zhen 

Wei Yu, No. A087 563 591 (B.I.A. Apr. 30, 2012), aff’g No. A087 

563 591 (Immig. Ct. Buffalo, N.Y. Aug. 10, 2010). We assume 

the parties’ familiarity with the underlying facts and 

procedural history in this case. 

Under the circumstances of this case, we have reviewed the 

IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S. 
3 

Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The 

applicable standards of review are well established. See 

8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 

165-66 (2d Cir. 2008). 

 For asylum applications governed by the REAL ID Act, such 

as Yu’s, the IJ may, considering the totality of the 

circumstances, base a credibility finding on an asylum 

applicant’s demeanor, candor, or responsiveness, and 

inconsistencies in his statements and other record evidence, 

without regard to whether they go “to the heart of the 

applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

Lin, 534 F.3d at 163, 165. Here, a totality of the 

circumstances, including inconsistencies and omissions between 

Yu’s testimony and his personal statement or other record 

evidence, support the IJ’s credibility determination. See 

Xiu Xia Lin, 534 F.3d at 166 n.3. 

 Yu testified that he was a member of the student democratic 

organization “Sound of Freedom,” but made no mention of the 

group in his personal statement. When asked to explain this 

omission, Yu testified that he did not think that he had to put 

the name down. This explanation is not compelling, and the IJ 
4 

was not required to accept it. See Majidi v. Gonzales, 430 F.3d 

77, 80 (2d Cir. 2005). Yu also testified that the police forced 

him to sign a guarantee letter that required him to report to 

the station every two weeks, but his personal statement does 

not mention any such letter; it states only that he was closely 

watched by the police. Yu argues that this inconsistency was 

minor and that he was not required to list every incident of 

persecution in his asylum application. Yu’s argument is 

unpersuasive, however, as it ignores the distinction between 

being watched by the police and being made to sign a guarantee 

letter that required him to report to the police station every 

two weeks. See id. at 81 (deferring to agency credibility 

determination where reasonable factfinder not “compelled” to 

conclude to the contrary). 

 The agency also reasonably found Yu’s testimony 

inconsistent with his father’s letter. Yu testified that the 

police arrested him at his apartment, but his father’s letter 

states that Yu was arrested at the father’s home. This 

inconsistency provides substantial support for the IJ’s adverse 

credibility determination because it directly relates to the 

one significant instance of persecution that Yu alleges. See 
5 

Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d 

Cir. 2006). Yu’s counsel wrote a letter to the IJ after the 

hearing claiming that that the letter’s translation was 

incorrect, but the IJ reasonably rejected that explanation, 

noting that Yu’s counsel is not a translator, and Yu did not 

point to any other record evidence indicating that the 

translation was deficient. See Majidi, 430 F.3d at 80. 

Given the inconsistencies between Yu’s testimony and his 

personal statement or other record evidence, we conclude that 

substantial evidence supports the agency’s adverse credibility 

determination, which provided an adequate basis for denying him 

asylum, withholding of removal, and CAT relief. See 8 U.S.C. 

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165; see also 

Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006).1

 

 For the foregoing reasons, the petition for review is 

DENIED. As we have completed our review, Yu’s pending motion 

for a stay of removal in this petition is DENIED as moot. Any 

 

1 We do not consider Yu’s arguments regarding (1) the IJ’s 

purported failure to consider Yu’s alternative explanation for 

these inconsistencies, and (2) the IJ’s reliance on Yu’s history 

of immigration fraud, as Yu did not raise these arguments before 

the BIA. See Acharya v. Holder, 761 F.3d 289, 294 n.2 (2d Cir. 

2014).
6 

pending request for oral argument in this petition is DENIED 

in accordance with Federal Rule of Appellate Procedure 34(a)(2) 

and Second Circuit Local Rule 34.1(b). 

 FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court