12-4245 Zhang v. HolderBIA Cheng, IJ A087 588 267 

### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 6 th** **day of November, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **RICHARD C. WESLEY,** 9 **PETER W. HALL,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **JIAN FENG ZHANG,** 14 Petitioner**,** 15 16 **v. 12-4245** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER: Michael Brown, New York, New York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Greg D. Mack,** 27 **Senior Litigation Counsel; Meadow W.** 28 **Platt, Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 32UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Jian Feng Zhang, a native and citizen of China, seeks 5 review of an October 10, 2012, decision of the BIA affirming 6 the March 4, 2011, decision of Immigration Judge (“IJ”) Mary 7 M. Cheng, which denied his application for asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Jian Feng Zhang, No. A087 10 588 267 (B.I.A. Oct. 10, 2012), aff’gNo. A087 588 267 11 (Immig. Ct. N.Y. City Mar. 4, 2011). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 Under the circumstances of this case, we have reviewed 15 both the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 17 2008). The applicable standards of review are well18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 19 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 20 For applications, like Zhang’s, governed by the REAL ID 21 Act, the agency may, “[c]onsidering the totality of the 22 circumstances,” base a credibility finding on an asylum 23
2applicant’s “demeanor, candor, or responsiveness,” the 1 plausibility of his account, and inconsistencies in his 2 statements, without regard to whether they go “to the heart 3 of the applicant’s claim.” 8 U.S.C. 4 § 1158(b)(1)(B)(iii); see id. at § 1231(b)(3)(C); Xiu Xia 5 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We defer 6 to an IJ’s credibility determination unless, “from the 7 totality of the circumstances, it is plain that no 8 reasonable fact-finder could make such an adverse 9 credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. 10 Here, the agency reasonably found Zhang not credible 11 based on a major inconsistency among his credible fear 12 interview, asylum application, and hearing testimony. See 13 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 166 14 n.3. Zhang mentions a June 2008 incident with the police at 15 three different places in his asylum application, detailing 16 how the police came to his home, beat him with their fists 17 and feet, and left him in pain. However, he did not mention 18 this incident at all at his credible fear interview or 19 during direct examination. At the hearing, when Zhang was 20 asked how many times he had problems in China, he answered, 21 only once in August 2008. On cross-examination, Zhang 22

3changed his testimony to say that there had been two 1 incidents with the police, one in June and one in August. 2 This inconsistency goes to the heart of Zhang’s claim that 3 he suffered past persecution on account of his religion, as 4 the June 2008 incident was the only allegation of arrest or 5 physical harm. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 6 Lin , 534 F.3d at 167. 7 In addition, Zhang failed to otherwise corroborate his 8 practice of Christianity as he did not call witnesses from 9 his church or family to verify that he attends church in the 10 United States, despite the fact that his hearing date had 11 been set for over a year. See Biao Yang v. Gonzales v. 12 Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 13 Furthermore, the agency considered and reasonably 14 rejected Zhang’s explanations for both his omission of the 15 June 2008 arrest and beating and his lack of corroboration. 16 When questioned why he did not mention the June 2008 17 incident at the credible fear interview, Zhang offered that 18 the interviewer did not ask the detailed questions and he 19 had failed to explain himself clearly. He further noted 20 that the June incident was not serious and he often forgets 21 to mention it. As the June incident was the only arrest or 22

4physical harm Zhang suffered in China, the agency was not 1 compelled to credit the explanation, particularly given the 2 detailed account and level of harm described in his asylum 3 application. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d 4 Cir. 2005) (A petitioner “must do more than offer a 5 plausible explanation for his inconsistent statements to 6 secure relief; he must demonstrate that a reasonable fact7 finder would be compelledto credit his testimony.” 8 (emphasis original, internal quotations and citation 9 omitted)). 10 The agency also reasonably rejected Zhang’s explanation 11 that no fellow parishioners or family members could verify 12 his church attendance because they were too busy or out of 13 status, particularly since they lived in New York, he had a 14 year to obtain witnesses, and he made no request for 15 telephonic testimony. Cf. id

. 16 The adverse credibility determination is further 17 supported by the IJ’s demeanor finding, to which we defer. 18
See Karaj v. Gonzales,462 F.3d 113, 116 (2d Cir. 2006) 19 (“the IJ’s opportunity to judge demeanor causes us to grant 20 particular deference to credibility findings based on 21 demeanor” (internal quotations and citation omitted)). 22

23 5Finally, because the agency’s adverse credibility 1 determination is dispositive, we do not reach the 2 alternative finding that Zhang failed to meet his burden of 3 proof. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a 4 general rule courts and agencies are not required to make 5 findings on issues the decision of which is unnecessary to 6 the results they reach.”).For the foregoing reasons, the 7 petition for review is DENIED. As we have completed our 8 review, any stay of removal that the Court previously 9 granted in this petition is VACATED, and any pending motion 10 for a stay of removal in this petition is DISMISSED as moot. 11 Any pending request for oral argument in this petition is 12 DENIED in accordance with Federal Rule of Appellate 13 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 14
FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16

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