15-351 Zhang v. Lynch BIA Vomacka, IJ A099 895 703 

### 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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **4 th**  **day of October, two thousand sixteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XUE JIE ZHANG,** 13 Petitioner **,** 14 15 **v. 15-351** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Gerald Karikari, New York, New York. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; 26 Jennifer P. Williams, Senior 27 Litigation Counsel; Raya Jarawan, 28 Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, D.C. 32 33 342 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Xue Jie Zhang, a native and citizen of China, 5 seeks review of a January 9, 2015, decision of the BIA affirming 6 a December 6, 2012, decision of an Immigration Judge (“IJ”) 7 denying Zhang’s application for asylum, withholding of removal, 8 and relief under the Convention Against Torture (“CAT”). In 9 re Xue Jie Zhang, No. A099 895 703 (B.I.A. Jan. 9, 2015), aff’g 10 No. A099 895 703 (Immig. Ct. N.Y. City Dec. 6, 2012). We assume 11 the parties’ familiarity with the underlying facts and 12 procedural history in this case. 13 Zhang does not challenge the agency’s denial of his asylum 14 application as untimely, Norton v. Sam’s Club , 145 F.3d 114, 15 117 (2d Cir. 1998), and we generally lack jurisdiction to review 16 that finding, 8 U.S.C. §§ 1158(a)(2), 1252(a)(2)(D) (agency’s 17 finding that asylum application was filed more than one year 18 after arrival is not subject to review except as to 19 constitutional claims and questions of law). Because the BIA 20 did not reach the IJ’s conclusion that Zhang failed to meet his 21 burden to demonstrate a likelihood of future harm, our review 223 is further limited to the adverse credibility determination. 1 See Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 2 (2d Cir. 2005) (holding that where the BIA affirms in only some 3 respects, we review the IJ’s decision as modified by the BIA’s 4 decision). As discussed below, the agency’s adverse 5 credibility determination is dispositive of both withholding 6 of removal and CAT relief. Paul v. Gonzales , 444 F.3d 148, 7 156-57 (2d Cir. 2006). We review credibility determinations 8 under a substantial evidence standard. 8 U.S.C. 9 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165 (2d 10 Cir. 2008). 11 Under the REAL ID Act of 2005, the agency may, in light of 12 “the totality of the cir cumstances,” base an adverse 13 credibility determination on an asylum applicant’s “demeanor, 14 candor, or responsiveness,” the plausibility of his account, 15 and inconsistencies in his statements, “without regard to 16 whether” those inconsistencies go “to the heart of the 17 applicant’s claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii), 18 1231(b)(3)(C); Xiu Xia Lin , 534 F.3d at 165. Under the 19 “substantial evidence” standard of review, we “defer . . . to 20 an IJ’s credibility determination unless, from the totality of 21 the circumstances, it is plain that no reasonable fact-finder 224 could make such an adverse credibility ruling.” Xiu Xia Lin , 1 534 F.3d at 167. 2 The IJ’s decision makes sufficiently clear that it was 3 deciding the credibility of Zhang’s testimony. The IJ stated 4 that Zhang’s “credibility overall is affected by the 5 explanation he has given for the lack of agreement between his 6 testimony of attending Church of Grace since February 2009 and 7 the letter issued by the church.” He further found that “there 8 were issues raised concerning the respondent’s credibility in 9 general from” Zhang’s two visa applications. He observed that 10 Zhang’s was a case in which the lack of corroboration “raises 11 issues about credibility”--although credibility and 12 corroboration are often treated as distinct, here they were 13 intertwined. Diallo , 232 F.3d at 290 (in making a credibility 14 determination, “the presence of corroborating evidence may be 15 relevant”). 16 At bottom, the IJ doubted that Zhang is a practicing 17 Christian. That finding rests on substantial evidence. 18 Although Zhang testified that he began attending the Church of 19 Grace in February 2009, his only documentary evidence of 20 attendance was a letter stating that, according to the 21 registration book, Zhang started attending services on October 225 31, 2010. When asked about the period between February 2009 1 and October 2010, Zhang explained that he did not write his name 2 in the attendance book until October 2010 because he did not 3 know he needed to “put down” his name. The IJ was not compelled 4 to credit this explanation. Majidi v. Gonzales , 430 F.3d 77, 5 80 (2d Cir. 2005) (explaining that the agency is not required 6 to credit an explanation that is merely plausible or possible). 7 Moreover, the IJ reasonably deemed the timing to be suspicious: 8 Zhang had submitted his asylum application in June 2010, months 9 before he began documenting his attendance. 10 Other aspects of Zhang’s testimony cast doubt on his 11 practice of Christianity. Zhang testified that while living 12 in Roanoke, Virginia for two years, he commuted to the Church 13 of Grace in New York for services “once a week” or sometimes 14 “once every two or three weeks.” When asked why he did not 15 attend services in Roanoke, Zhang responded that his employer 16 told him there were no Chinese churches nearby. The IJ 17 reasonably rejected this explanation as implausible. Majidi , 18 430 F.3d at 80. “The point at which a finding that testimony 19 is implausible ceases to be sustainable as reasonable and, 20 instead, is justifiably labeled ‘speculation,’ in the absence 21 of an IJ’s adequate explanation, cannot be located with 226 precision,” but we uphold a finding unless we are “left with 1 the definite and firm conviction that a mistake has been 2 committed.” Ming Xia Chen v. BIA , 435 F.3d 141, 145 (2d Cir. 3 2006) (internal citation and quotation marks omitted). Here, 4 the IJ’s question was grounded in common sense: why would a 5 devout Christian travel from Roanoke to New York for services 6 simply because it was “familiar” to him? The IJ justifiably 7 found that even if one credited the explanation, it undercut 8 Zhang’s credibility further: as the IJ observed, Zhang had no 9 documentary evidence, in the form of bus tickets and the like, 10 to corroborate this explanation. “[T]he absence of 11 corroboration in general makes an applicant unable to 12 rehabilitate testimony that has already been called into 13 question.” Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 14 2007). 15 Zhang’s witness list did not fill that gap. He called none 16 of his 1,000 fellow parishioners from Church of Grace to 17 testify; he explained that “some of them do not have legal 18 status”; but the explanation was partial at best, and the IJ 19 was not compelled to accept it. The agency also reasonably 20 found that Zhang’s credibility was not rehabilitated by his 21 uncle’s testimony that he went to church with Zhang “once,” 227 especially since Zhang had asked him to go in order “to be his 1 witness.” 2 Zhang’s credibility was further undermined by the 3 existence of two earlier visa applications, which suggested 4 that he had been trying to leave China before he ever converted 5 to Christianity. Zhang denied knowled ge of both applications. 6 On direct examination, Zhang testified that he decided to leave 7 China because his underground church was raided by the police. 8 On cross-examination, he denied having previously sought 9 immigration status in the United States. When the Government 10 presented an alien relative visa application submitted on his 11 behalf by a third party (identified as his father), Zhang said 12 he had never heard of the visa petitioner. Zhang later 13 confirmed that his mother had remarried, but said that he met 14 his stepfather once, knew him only by the name “Asen,” and did 15 not know where he came from. The Government presented evidence 16 that Zhang had been denied a student visa based on “suspected 17 fraud,” and that his record had a “hit” for possible marriage 18 fraud. 19 Given the inconsistencies and implausibilities that cast 20 doubt on Zhang’s claim to be a practicing Christian, as well 21 as discrepancies in applications, which call into question his 228 reasons for leaving China, the totality of the circumstances 1 supports the adverse credibility determination. Siewe v. 2 Gonzales , 480 F.3d 160, 170 (2d Cir. 2007). Because his 3 applications for withholding of removal and CAT relief were 4 based on the same factual predicate (his Christianity), the 5 adverse credibility determination is dispositive of both. 6 Paul , 444 F.3d at 156-57. 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our rev iew, any stay of removal 9 that the Court previously granted in this petition is VACATED, 10 and any pending motion for a stay of removal in this petition 11 is DISMISSED as moot. Any pending request for oral argument 12 in this petition is DENIED in accordance with Federal Rule of 13 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 14 34.1(b). 15
FOR THE COURT: 16 Catherine O = Hagan Wolfe, Clerk 17