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.**  **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 11 th** **day of July, two thousand twelve.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **GERARD E. LYNCH,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **NAIQIANG ZHOU,** 13 Petitioner**,** 14 15 **v. 10-5222-ag (L);** 16 **11-2667-ag (Con)** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21 22

**_____________________________________** 23 24 **FOR PETITIONER: Thomas V. Massucci, New York, New** 25 **York.** 26 27 **FOR RESPONDENT: Tony West, Assistant Attorney** 28 **General; Blair T. O’Connor,** 29 **Assistant Director; Ari Nazarov,** 302 **Trial Attorney, Office of** 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 Niaqiang Zhou, a native and citizen of the People’s 10 Republic of China, seeks review of a November 29, 2010, 11 order of the BIA affirming the August 19, 2009, decision of 12 an Immigration Judge (“IJ”), which denied his application 13 for asylum, withholding of removal, and relief under the 14 Convention Against Torture (“CAT”). In re Naiqiang Zhou , 15 No. A089 198 254 (B.I.A. Nov. 29, 2010),aff’gNo. A089 198 16 254 (Immig. Ct. N.Y. City Aug. 19, 2009). Zhou also seeks 17 review of a May 31, 2011, order of the BIA denying his 18 motion to reopen. In re Naiqiang Zhou , No. A089 198 254 19 (B.I.A. May 31, 2011). We assume the parties’ familiarity 20 with the underlying facts and procedural history in this 21

case. 22
**I. 2010 Order of Removal** 23 Under the circumstances of this case, we have reviewed 24 the decision of the IJ as supplemented by the BIA. See Yan 253 Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 1 applicable standards of review are well established. 2
See8 U.S.C. § 1252(b)(4)(B);see also Yanqin Weng v. 3 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 4 For applications such as Zhou’s, governed by the 5 amendments made to the Immigration and Nationality Act by 6 the REAL ID Act of 2005, the agency may, considering the 7 totality of the circumstances, base a credibility finding on 8 the applicant’s “demeanor, candor, or responsiveness,” the 9 plausibility of his account, and inconsistencies in his 10 statements, without regard to whether they go “to the heart 11 of the applicant’s claim.” See8 U.S.C. 12 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,534 F.3d 162, 13 167 (2d Cir. 2008). We will “defer to an IJ’s credibility 14 determination unless, from the totality of the 15 circumstances, it is plain that no reasonable fact-finder 16 could make” such a ruling. Xiu Xia Lin , 534 F.3d at 167. 17 The IJ’s adverse credibility determination is supported 18 by substantial evidence

. The IJ reasonably based his 19 credibility finding on: (1) inconsistencies between Zhou’s 20 testimony that a raid on his house church occurred during a 21 baptism on Easter and a letter from fellow church member Jie 224 Bin Hu that failed to mention the raid; (2) Zhou’s evasive 1 demeanor and non-responsive answers in explaining Hu’s 2 omission and his own absence from the baptism; and (3) 3 Zhou’s failure to provide reliable letters from church 4 members present during the Easter raid or the raid during 5 which Zhou allegedly was arrested. Moreover, the IJ 6 reasonably rejected Zhou’s explanation for Hu’s failure to 7 mention the Easter raid . See Majidi v. Gonzales , 430 F.3d 8 77, 80-81 (2d Cir. 2005). Given the inconsistencies between 9 Zhou’s testimony and Hu’s letter, as well as the IJ’s 10 demeanor finding and the lack of reliable corroborating 11 evidence, the totality of the circumstances supports the 12 agency’s adverse credibility determination. 13 Zhou argues that, despite the IJ’s adverse credibility 14 determination, he established a well-founded fear of 15 persecution based on his credible testimony that he 16 practices Christianity and on the background materials he 17 submitted. However, the IJ reasonably found that Zhou, who 18 testified that he attended small house church meetings of 19 eleven members, failed to demonstrate that he would be 20 persecuted in China, because the 2007 and 2008 State 21 Department reports he submitted showed that the Chinese 225 government’s treatment of unregistered Christian church 1 members varied, and that small gatherings were “quietly 2 tolerated.” Because Zhou was unable to show the objectively 3 reasonable fear of persecution needed to make out an asylum 4 claim, he was necessarily unable to meet the higher standard 5 required to succeed on a claim for withholding of removal. 6 See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 7 **II. 2011 Motion to Reopen** 8 The BIA’s denial of Zhou’s motion to reopen as untimely 9 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d 10 232, 233 (2d Cir. 2005) (per curiam). A motion to reopen 11 generally must be filed no later than 90 days after the date 12 on which the final administrative decision was rendered in 13 the proceedings sought to be reopened. 8 U.S.C. 14 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no 15 dispute that Zhou’s March 2011 motion was untimely, as the 16 final administrative order was issued in November 2010. The 17 time limitation does not apply to a motion to reopen if it 18 is “based on changed circumstances arising in the country of 19 nationality or in the country to which deportation has been 20 ordered, if such evidence is material and was not available 21 and could not have been discovered or presented at the 22 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 236 8 U.S.C. § 1229a(c)(7)(C)(ii). However, substantial 1 evidence supports the BIA’s finding that Zhou failed to 2 establish changed circumstances in China. See Jian Hui Shao 3 v. Mukasey,546 F.3d 138, 169 (2d Cir. 2008). 4 Zhou contends that the letters he submitted from his 5 wife and friend in China demonstrated changed circumstances 6 in that Chinese officials had become aware of his 7 involvement in house churches and sought to arrest him. As 8 the BIA reasonably found, however, the letter from his wife 9 he submitted at his merits hearing similarly asserted that 10 the Chinese police knew about his church activities and had 11 previously questioned his wife as to his whereabouts. 12 Furthermore, given the underlying adverse credibility 13 determination, the BIA did not abuse its discretion in 14 declining to credit Zhou’s evidence. Qin Wen Zheng v. 15 Gonzales , 500 F.3d 143, 147-48 ( 2d Cir. 2007). 16 Because the evidence Zhou submitted was insufficient to 17 establish a change in the Chinese government’s treatment of 18 house church members, the BIA did not abuse its discretion 19 in concluding that Zhou failed to meet an exception to the 20 filing deadline and, accordingly, in denying his untimely 21 motion to reopen. See8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 22 8 C.F.R. § 1003.2(c)(2), (3). 237 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, Petitioner’s 2 motion for a stay of removal in this petition is DISMISSED 3 as moot. His pending request for oral argument in this 4 petition is DENIED in accordance with Federal Rule of 5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 6 34.1(b). 7
FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10 11