11-4243 BIA

He v. Holder A087 467 417

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.

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 20th 4 day of September, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 SUSAN L. CARNEY,

10 CHRISTOPHER F. DRONEY,

11 Circuit Judges. 

12 _____________________________________

13

14 ZHU HE, AKA JIAN ZHENG HE,

15 Petitioner, 

16

17 v. 11-4243

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Feng Li, Moslemi and Associates,

25 Inc., New York, New York.

26

27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

28 Attorney General; Linda S. Wernery,

29 Assistant Director; Gregory M.

30 Kelch, Attorney, Office of
2

1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Zhu He, a native and citizen of the People’s Republic

10 of China, seeks review of a September 23, 2011, decision of

11 the BIA affirming the May 25, 2010, decision of an

12 Immigration Judge (“IJ”), which denied his application for

13 asylum, withholding of removal and relief under the

14 Convention Against Torture (“CAT”). In re Zhu He, No. A087

15 467 417 (B.I.A. Sept. 23, 2011), aff’g No. A087 467 417

16 (Immig. Ct. N.Y. City May 25, 2010). We assume the parties’

17 familiarity with the underlying facts and procedural history

18 in this case.

19 Under the circumstances of this case, we have reviewed

20 both the BIA’s and the IJ’s decisions, including the

21 portions of the IJ’s decision not explicitly discussed by

22 the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

23 Cir. 2005) (per curiam). The applicable standards of review

24 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see

25 also Xiu Xia Liu v. Mukasey, 534 F.3d 162, 167 (2d Cir.

26 2008) (per curiam). 
3

1 For asylum applications, such as He’s, governed by the

2 amendments made to the Immigration and Nationality Act by

3 the REAL ID Act of 2005, the agency may, considering the

4 totality of the circumstances, base a credibility finding on

5 an asylum applicant’s demeanor, candor, or responsiveness,

6 as well as any inconsistencies between the applicant’s

7 statements and other record evidence, without regard to

8 whether the inconsistencies go “to the heart of the

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

10 Xia Lin, 534 F.3d at 167.

11 The IJ found that He appeared uncomfortable and “looked

12 up” when asked questions that diverged from his prepared

13 statement, but He claims that he was merely searching his

14 memory. However, He’s explanation for his questionable

15 demeanor “misapprehends the degree of deference we must

16 afford to the IJ’s credibility findings” because a

17 petitioner “must do more than offer a plausible explanation

18 ... to secure relief; he must demonstrate that a reasonable

19 fact-finder would be compelled to credit his testimony.” 

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

21 and internal quotation marks omitted); see also Li Zu Guan

22 v. INS, 453 F.3d 129, 139-40 (2d Cir. 2006) (noting that
4

1 particular deference is given to the trier of fact’s

2 assessment of demeanor because demeanor is “paradigmatically

3 the sort of evidence that a fact-finder is best positioned

4 to evaluate”).

5 He also claims that the agency’s inconsistency findings

6 were not supported by substantial evidence because they were

7 too “minor and equivocal,” and the agency failed to consider

8 his plausible explanations for the inconsistencies between

9 his testimony and his mother’s letter. However,“an IJ may

10 rely on any inconsistency or omission in making an adverse

11 credibility determination as long as the totality of the

12 circumstances establishes that an asylum applicant is not

13 credible.” Xiu Xia Lin, 534 F.3d at 167 (emphasis in

14 original) (internal quotation marks omitted). Moreover, the

15 agency reasonably declined to credit He’s explanation that

16 the inconsistencies were due to a translation error because

17 the new translation of his mother’s letter was still

18 inconsistent with his testimony. See Majidi, 430 F.3d at

19 80-81 (the agency need not credit an applicant’s

20 explanations for inconsistent testimony unless those

21 explanations would compel a reasonable fact-finder to do

22 so). 
5

1 The agency’s adverse credibility determination was

2 further supported by He’s failure to corroborate his claim. 

3 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

4 (per curiam) (explaining that an applicant’s corroborating

5 evidence may rehabilitate otherwise questionable testimony). 

6 Because He’s testimony was not otherwise credible, the

7 agency properly relied on the lack of corroborative

8 evidence, including medical records and employment

9 verification, in finding that He failed to rehabilitate his

10 testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

11 F.3d 315, 341 (2d Cir. 2006) (concluding that the agency was

12 not required to identify and determine whether corroborative

13 evidence is reasonably available when the applicant was not

14 otherwise credible). Moreover, He’s claim that the

15 corroborative evidence identified by the agency was not

16 reasonably available is belied by his own testimony that he

17 failed to submit it because he did not think to request it. 

18 Accordingly, because the totality of the circumstances

19 supports the agency’s adverse credibility determination, we

20 defer to that finding. See 8 U.S.C. § 1158(b)(1)(B)(iii);

21 Xiu Xia Lin, 534 F.3d at 167. As the only evidence of a

22 threat to He’s life or freedom depended upon his

23 credibility, the adverse credibility determination in this
6

1 case necessarily precludes success on his claims for asylum

2 and withholding of removal. See Paul v. Gonzales, 444 F.3d

3 148, 156 (2d Cir. 2006). Finally, He has waived his CAT

4 claim. 

5 For the foregoing reasons, the petition for review is

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

7 removal that the Court previously granted in this petition

8 is VACATED, and any pending motion for a stay of removal in

9 this petition is DISMISSED as moot. Any pending request for

10 oral argument in this petition is DENIED in accordance with

11 Federal Rule of Appellate Procedure 34(a)(2), and Second

12 Circuit Local Rule 34.1(b).

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

15