10-5222-ag (L)

Zhou v. Holder

BIA

Vomacka, IJ

A089 198 254

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 11th 4 day of July, two thousand twelve.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 GERARD E. LYNCH,

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _____________________________________

12

13 NAIQIANG ZHOU,

14 Petitioner, 

15

16 v. 10-5222-ag (L);

17 11-2667-ag (Con)

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22

23 _____________________________________

24

25 FOR PETITIONER: Thomas V. Massucci, New York, New

26 York.

27

28 FOR RESPONDENT: Tony West, Assistant Attorney

29 General; Blair T. O’Connor,

30 Assistant Director; Ari Nazarov,
2

1 Trial Attorney, Office of

2 Immigration Litigation, United

3 States Department of Justice,

4 Washington, D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 is DENIED.

10 Niaqiang Zhou, a native and citizen of the People’s

11 Republic of China, seeks review of a November 29, 2010,

12 order of the BIA affirming the August 19, 2009, decision of

13 an Immigration Judge (“IJ”), which denied his application

14 for asylum, withholding of removal, and relief under the

15 Convention Against Torture (“CAT”). In re Naiqiang Zhou,

16 No. A089 198 254 (B.I.A. Nov. 29, 2010), aff’g No. A089 198

17 254 (Immig. Ct. N.Y. City Aug. 19, 2009). Zhou also seeks

18 review of a May 31, 2011, order of the BIA denying his

19 motion to reopen. In re Naiqiang Zhou, No. A089 198 254

20 (B.I.A. May 31, 2011). We assume the parties’ familiarity

21 with the underlying facts and procedural history in this

22 case.

23 I. 2010 Order of Removal

24 Under the circumstances of this case, we have reviewed

25 the decision of the IJ as supplemented by the BIA. See Yan
3

1 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

2 applicable standards of review are well established. 

3 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

4 Holder, 562 F.3d 510, 513 (2d Cir. 2009).

5 For applications such as Zhou’s, governed by the

6 amendments made to the Immigration and Nationality Act by

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

8 totality of the circumstances, base a credibility finding on

9 the applicant’s “demeanor, candor, or responsiveness,” the

10 plausibility of his account, and inconsistencies in his

11 statements, without regard to whether they go “to the heart

12 of the applicant’s claim.” See 8 U.S.C.

13 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

14 167 (2d Cir. 2008). We will “defer to an IJ’s credibility

15 determination unless, from the totality of the

16 circumstances, it is plain that no reasonable fact-finder

17 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167. 

18 The IJ’s adverse credibility determination is supported

19 by substantial evidence. The IJ reasonably based his

20 credibility finding on: (1) inconsistencies between Zhou’s

21 testimony that a raid on his house church occurred during a

22 baptism on Easter and a letter from fellow church member Jie
4

1 Bin Hu that failed to mention the raid; (2) Zhou’s evasive

2 demeanor and non-responsive answers in explaining Hu’s

3 omission and his own absence from the baptism; and (3)

4 Zhou’s failure to provide reliable letters from church

5 members present during the Easter raid or the raid during

6 which Zhou allegedly was arrested. Moreover, the IJ

7 reasonably rejected Zhou’s explanation for Hu’s failure to

8 mention the Easter raid. See Majidi v. Gonzales, 430 F.3d

9 77, 80-81 (2d Cir. 2005). Given the inconsistencies between

10 Zhou’s testimony and Hu’s letter, as well as the IJ’s

11 demeanor finding and the lack of reliable corroborating

12 evidence, the totality of the circumstances supports the

13 agency’s adverse credibility determination. 

14 Zhou argues that, despite the IJ’s adverse credibility

15 determination, he established a well-founded fear of

16 persecution based on his credible testimony that he

17 practices Christianity and on the background materials he

18 submitted. However, the IJ reasonably found that Zhou, who

19 testified that he attended small house church meetings of

20 eleven members, failed to demonstrate that he would be

21 persecuted in China, because the 2007 and 2008 State

22 Department reports he submitted showed that the Chinese
5

1 government’s treatment of unregistered Christian church

2 members varied, and that small gatherings were “quietly

3 tolerated.” Because Zhou was unable to show the objectively

4 reasonable fear of persecution needed to make out an asylum

5 claim, he was necessarily unable to meet the higher standard

6 required to succeed on a claim for withholding of removal. 

7 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 

8 II. 2011 Motion to Reopen 

9 The BIA’s denial of Zhou’s motion to reopen as untimely

10 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d

11 232, 233 (2d Cir. 2005) (per curiam). A motion to reopen

12 generally must be filed no later than 90 days after the date

13 on which the final administrative decision was rendered in

14 the proceedings sought to be reopened. 8 U.S.C.

15 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no

16 dispute that Zhou’s March 2011 motion was untimely, as the

17 final administrative order was issued in November 2010. The

18 time limitation does not apply to a motion to reopen if it

19 is “based on changed circumstances arising in the country of

20 nationality or in the country to which deportation has been

21 ordered, if such evidence is material and was not available

22 and could not have been discovered or presented at the

23 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also
6

1 8 U.S.C. § 1229a(c)(7)(C)(ii). However, substantial

2 evidence supports the BIA’s finding that Zhou failed to

3 establish changed circumstances in China. See Jian Hui Shao

4 v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 

5 Zhou contends that the letters he submitted from his

6 wife and friend in China demonstrated changed circumstances

7 in that Chinese officials had become aware of his

8 involvement in house churches and sought to arrest him. As

9 the BIA reasonably found, however, the letter from his wife

10 he submitted at his merits hearing similarly asserted that

11 the Chinese police knew about his church activities and had

12 previously questioned his wife as to his whereabouts. 

13 Furthermore, given the underlying adverse credibility

14 determination, the BIA did not abuse its discretion in

15 declining to credit Zhou’s evidence. Qin Wen Zheng v.

16 Gonzales, 500 F.3d 143, 147-48 (2d Cir. 2007).

17 Because the evidence Zhou submitted was insufficient to

18 establish a change in the Chinese government’s treatment of

19 house church members, the BIA did not abuse its discretion

20 in concluding that Zhou failed to meet an exception to the

21 filing deadline and, accordingly, in denying his untimely

22 motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 

23 8 C.F.R. § 1003.2(c)(2), (3). 
7

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, Petitioner’s

3 motion for a stay of removal in this petition is DISMISSED

4 as moot. His pending request for oral argument in this

5 petition is DENIED in accordance with Federal Rule of

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

7 34.1(b).

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk

10

11