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.

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

2 the Second Circuit, held at the Thurgood Marshall United States 

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

4th 4 day of October, two thousand sixteen. 

5 

6 PRESENT: 

7 DENNIS JACOBS,

8 PETER W. HALL, 

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 XUE JIE ZHANG, 

14 Petitioner, 

15 

16 v. 15-351 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Gerald Karikari, New York, New York. 

24 

25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

26 Assistant Attorney General; 

27 Jennifer P. Williams, Senior 

28 Litigation Counsel; Raya Jarawan, 

29 Trial Attorney, Office of 

30 Immigration Litigation, United 

31 States Department of Justice, 

32 Washington, D.C. 

33 

34 
2

1 UPON DUE CONSIDERATION of this petition for review of a 

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

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

4 DENIED. 

5 Petitioner Xue Jie Zhang, a native and citizen of China, 

6 seeks review of a January 9, 2015, decision of the BIA affirming 

7 a December 6, 2012, decision of an Immigration Judge (“IJ”) 

8 denying Zhang’s application for asylum, withholding of removal, 

9 and relief under the Convention Against Torture (“CAT”). In 

10 re Xue Jie Zhang, No. A099 895 703 (B.I.A. Jan. 9, 2015), aff’g

11 No. A099 895 703 (Immig. Ct. N.Y. City Dec. 6, 2012). We assume 

12 the parties’ familiarity with the underlying facts and 

13 procedural history in this case. 

14 Zhang does not challenge the agency’s denial of his asylum 

15 application as untimely, Norton v. Sam’s Club, 145 F.3d 114, 

16 117 (2d Cir. 1998), and we generally lack jurisdiction to review 

17 that finding, 8 U.S.C. §§ 1158(a)(2), 1252(a)(2)(D) (agency’s 

18 finding that asylum application was filed more than one year 

19 after arrival is not subject to review except as to 

20 constitutional claims and questions of law). Because the BIA 

21 did not reach the IJ’s conclusion that Zhang failed to meet his 

22 burden to demonstrate a likelihood of future harm, our review 
3

1 is further limited to the adverse credibility determination. 

2 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 

3 (2d Cir. 2005) (holding that where the BIA affirms in only some 

4 respects, we review the IJ’s decision as modified by the BIA’s 

5 decision). As discussed below, the agency’s adverse 

6 credibility determination is dispositive of both withholding 

7 of removal and CAT relief. Paul v. Gonzales, 444 F.3d 148, 

8 156-57 (2d Cir. 2006). We review credibility determinations 

9 under a substantial evidence standard. 8 U.S.C. 

10 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d 

11 Cir. 2008). 

12 Under the REAL ID Act of 2005, the agency may, in light of 

13 “the totality of the circumstances,” base an adverse 

14 credibility determination on an asylum applicant’s “demeanor, 

15 candor, or responsiveness,” the plausibility of his account, 

16 and inconsistencies in his statements, “without regard to 

17 whether” those inconsistencies go “to the heart of the 

18 applicant’s claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii), 

19 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 165. Under the 

20 “substantial evidence” standard of review, we “defer . . . to 

21 an IJ’s credibility determination unless, from the totality of 

22 the circumstances, it is plain that no reasonable fact-finder 
4

1 could make such an adverse credibility ruling.” Xiu Xia Lin, 

2 534 F.3d at 167. 

3 The IJ’s decision makes sufficiently clear that it was 

4 deciding the credibility of Zhang’s testimony. The IJ stated 

5 that Zhang’s “credibility overall is affected by the 

6 explanation he has given for the lack of agreement between his 

7 testimony of attending Church of Grace since February 2009 and 

8 the letter issued by the church.” He further found that “there 

9 were issues raised concerning the respondent’s credibility in 

10 general from” Zhang’s two visa applications. He observed that 

11 Zhang’s was a case in which the lack of corroboration “raises 

12 issues about credibility”--although credibility and 

13 corroboration are often treated as distinct, here they were 

14 intertwined. Diallo, 232 F.3d at 290 (in making a credibility 

15 determination, “the presence of corroborating evidence may be 

16 relevant”). 

17 At bottom, the IJ doubted that Zhang is a practicing 

18 Christian. That finding rests on substantial evidence. 

19 Although Zhang testified that he began attending the Church of 

20 Grace in February 2009, his only documentary evidence of 

21 attendance was a letter stating that, according to the 

22 registration book, Zhang started attending services on October 
5

1 31, 2010. When asked about the period between February 2009 

2 and October 2010, Zhang explained that he did not write his name 

3 in the attendance book until October 2010 because he did not 

4 know he needed to “put down” his name. The IJ was not compelled 

5 to credit this explanation. Majidi v. Gonzales, 430 F.3d 77, 

6 80 (2d Cir. 2005) (explaining that the agency is not required 

7 to credit an explanation that is merely plausible or possible). 

8 Moreover, the IJ reasonably deemed the timing to be suspicious: 

9 Zhang had submitted his asylum application in June 2010, months 

10 before he began documenting his attendance. 

11 Other aspects of Zhang’s testimony cast doubt on his 

12 practice of Christianity. Zhang testified that while living 

13 in Roanoke, Virginia for two years, he commuted to the Church 

14 of Grace in New York for services “once a week” or sometimes 

15 “once every two or three weeks.” When asked why he did not 

16 attend services in Roanoke, Zhang responded that his employer 

17 told him there were no Chinese churches nearby. The IJ 

18 reasonably rejected this explanation as implausible. Majidi, 

19 430 F.3d at 80. “The point at which a finding that testimony 

20 is implausible ceases to be sustainable as reasonable and, 

21 instead, is justifiably labeled ‘speculation,’ in the absence 

22 of an IJ’s adequate explanation, cannot be located with 
6

1 precision,” but we uphold a finding unless we are “left with 

2 the definite and firm conviction that a mistake has been 

3 committed.” Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 

4 2006) (internal citation and quotation marks omitted). Here, 

5 the IJ’s question was grounded in common sense: why would a 

6 devout Christian travel from Roanoke to New York for services 

7 simply because it was “familiar” to him? The IJ justifiably 

8 found that even if one credited the explanation, it undercut 

9 Zhang’s credibility further: as the IJ observed, Zhang had no 

10 documentary evidence, in the form of bus tickets and the like, 

11 to corroborate this explanation. “[T]he absence of 

12 corroboration in general makes an applicant unable to 

13 rehabilitate testimony that has already been called into 

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

15 2007). 

16 Zhang’s witness list did not fill that gap. He called none 

17 of his 1,000 fellow parishioners from Church of Grace to 

18 testify; he explained that “some of them do not have legal 

19 status”; but the explanation was partial at best, and the IJ 

20 was not compelled to accept it. The agency also reasonably 

21 found that Zhang’s credibility was not rehabilitated by his 

22 uncle’s testimony that he went to church with Zhang “once,” 
7

1 especially since Zhang had asked him to go in order “to be his 

2 witness.” 

3 Zhang’s credibility was further undermined by the 

4 existence of two earlier visa applications, which suggested 

5 that he had been trying to leave China before he ever converted 

6 to Christianity. Zhang denied knowledge of both applications. 

7 On direct examination, Zhang testified that he decided to leave 

8 China because his underground church was raided by the police. 

9 On cross-examination, he denied having previously sought 

10 immigration status in the United States. When the Government 

11 presented an alien relative visa application submitted on his 

12 behalf by a third party (identified as his father), Zhang said 

13 he had never heard of the visa petitioner. Zhang later 

14 confirmed that his mother had remarried, but said that he met 

15 his stepfather once, knew him only by the name “Asen,” and did 

16 not know where he came from. The Government presented evidence 

17 that Zhang had been denied a student visa based on “suspected 

18 fraud,” and that his record had a “hit” for possible marriage 

19 fraud. 

20 Given the inconsistencies and implausibilities that cast 

21 doubt on Zhang’s claim to be a practicing Christian, as well 

22 as discrepancies in applications, which call into question his 
8

1 reasons for leaving China, the totality of the circumstances 

2 supports the adverse credibility determination. Siewe v. 

3 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). Because his 

4 applications for withholding of removal and CAT relief were 

5 based on the same factual predicate (his Christianity), the 

6 adverse credibility determination is dispositive of both. 

7 Paul, 444 F.3d at 156-57. 

8 For the foregoing reasons, the petition for review is 

9 DENIED. As we have completed our review, any stay of removal 

10 that the Court previously granted in this petition is VACATED, 

11 and any pending motion for a stay of removal in this petition 

12 is DISMISSED as moot. Any pending request for oral argument 

13 in this petition is DENIED in accordance with Federal Rule of 

14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

15 34.1(b). 

16 FOR THE COURT: 

17 Catherine O=Hagan Wolfe, Clerk