11-4243 BIA He v. Holder A087 467417



### 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 PERMIT TED 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 20 th** **day of September, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **SUSAN L. CARNEY,** 9 **CHRISTOPHER F. DRONEY,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **ZHU HE, AKA JIAN ZHENG HE,** 14 Petitioner**,** 15 16 **v. 11-4243** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_____________________________________** 22 23 **FOR PETITIONER: Feng Li, Moslemi and Associates,** 24 **Inc., New York, New York.** 25 26 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 27 **Attorney General; Linda S. Wernery,** 28 **Assistant Director; Gregory M.** 29 **Kelch, Attorney, Office of** 302 **Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Zhu He, a native and citizen of the People’s Republic 9 of China, seeks review of a September 23, 2011, decision of 10 the BIA affirming the May 25, 2010, decision of an 11 Immigration Judge (“IJ”), which denied his application for 12 asylum, withholding of removal and relief under the 13 Convention Against Torture (“CAT”). In re Zhu He , No. A087 14 467 417 (B.I.A. Sept. 23, 2011),aff’gNo. A087 467 417 15 (Immig. Ct. N.Y. City May 25, 2010). We assume the parties’ 16 familiarity with the underlying facts and procedural history 17 in this case. 18 Under the circumstances of this case, we have reviewed 19 both the BIA’s and the IJ’s decisions, including the 20 portions of the IJ’s decision not explicitly discussed by 21 the BIA. Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d 22 Cir. 2005) (per curiam). The applicable standards of review 23 are well-established. See8 U.S.C. § 1252(b)(4)(B); see 24 also Xiu Xia Liu v. Mukasey, 534 F.3d 162, 167 (2d Cir. 25 2008) (per curiam). 263 For asylum applications, such as He’s, governed by the 1 amendments made to the Immigration and Nationality Act by 2 the REAL ID Act of 2005, the agency may, considering the 3 totality of the circumstances, base a credibility finding on 4 an asylum applicant’s demeanor, candor, or responsiveness, 5 as well as any inconsistencies between the applicant’s 6 statements and other record evidence, without regard to 7 whether the inconsistencies go “to the heart of the 8 applicant’s claim.” See8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 9 Xia Lin, 534 F.3d at 167. 10 The IJ found that He appeared uncomfortable and “looked 11 up” when asked questions that diverged from his prepared 12 statement, but He claims that he was merely searching his 13 memory. However, He’s explanation for his questionable 14 demeanor “misapprehends the degree of deference we must 15 afford to the IJ’s credibility findings” because a 16 petitioner “must do more than offer a plausible explanation 17 ... to secure relief; he must demonstrate that a reasonable 18 fact-finder would be compelled to credit his testimony.” 19 Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (emphasis 20 and internal quotation marks omitted); see also Li Zu Guan 21

v. INS, 453 F.3d 129, 139-40 (2d Cir. 2006) (noting that 224 particular deference is given to the trier of fact’s 1 assessment of demeanor because demeanor is “paradigmatically 2 the sort of evidence that a fact-finder is best positioned 3 to evaluate”). 4 He also claims that the agency’s inconsistency findings 5 were not supported by substantial evidence because they were 6 too “minor and equivocal,” and the agency failed to consider 7 his plausible explanations for the inconsistencies between 8 his testimony and his mother’s letter. However,“an IJ may 9 rely on any inconsistency or omission in making an adverse 10 credibility determination as long as the totality of the 11 circumstances establishes that an asylum applicant is not 12 credible.” Xiu Xia Lin , 534 F.3d at 167 (emphasis in 13 original) (internal quotation marks omitted). Moreover, the 14 agency reasonably declined to credit He’s explanation that 15 the inconsistencies were due to a translation error because 16 the new translation of his mother’s letter was still 17 inconsistent with his testimony. See Majidi , 430 F.3d at 18 80-81 (the agency need not credit an applicant’s 19 explanations for inconsistent testimony unless those 20 explanations would compel a reasonable fact-finder to do 21 so). 225 The agency’s adverse credibility determination was 1 further supported by He’s failure to corroborate his claim. 2 See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) 3 (per curiam) (explaining that an applicant’s corroborating 4 evidence may rehabilitate otherwise questionable testimony). 5 Because He’s testimony was not otherwise credible, the 6 agency properly relied on the lack of corroborative 7 evidence, including medical records and employment 8 verification, in finding that He failed to rehabilitate his 9 testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice , 471 10 F.3d 315, 341 (2d Cir. 2006) (concluding that the agency was 11 not required to identify and determine whether corroborative 12 evidence is reasonably available when the applicant was not 13 otherwise credible). Moreover, He’s claim that the 14 corroborative evidence identified by the agency was not 15 reasonably available is belied by his own testimony that he 16 failed to submit it because he did not think to request it. 17 Accordingly, because the totality of the circumstances 18 supports the agency’s adverse credibility determination, we 19 defer to that finding. See8 U.S.C. § 1158(b)(1)(B)(iii); 20 Xiu Xia Lin , 534 F.3d at 167. As the only evidence of a 21 threat to He’s life or freedom depended upon his 22 credibility, the adverse credibility determination in this 236 case necessarily precludes success on his claims for asylum 1 and withholding of removal. See Paul v. Gonzales , 444 F.3d 2 148, 156 (2d Cir. 2006). Finally, He has waived his CAT 3 claim. 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of 6 removal that the Court previously granted in this petition 7 is VACATED, and any pending motion for a stay of removal in 8 this petition is DISMISSED as moot. Any pending request for 9 oral argument in this petition is DENIED in accordance with 10 Federal Rule of Appellate Procedure 34(a)(2), and Second 11 Circuit Local Rule 34.1(b). 12

FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15