12-4245 

Zhang v. Holder 

 BIA

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.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 6th 4 day of November, two thousand thirteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 Chief Judge,

9 RICHARD C. WESLEY,

10 PETER W. HALL,

11 Circuit Judges. 

12 _____________________________________

13

14 JIAN FENG ZHANG,

15 Petitioner, 

16

17 v. 12-4245

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Michael Brown, New York, New York.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Greg D. Mack,

28 Senior Litigation Counsel; Meadow W.

29 Platt, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Jian Feng Zhang, a native and citizen of China, seeks

6 review of an October 10, 2012, decision of the BIA affirming

7 the March 4, 2011, decision of Immigration Judge (“IJ”) Mary

8 M. Cheng, which denied his application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Jian Feng Zhang, No. A087

11 588 267 (B.I.A. Oct. 10, 2012), aff’g No. A087 588 267

12 (Immig. Ct. N.Y. City Mar. 4, 2011). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and the BIA’s opinions “for the sake of

17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18 2008). The applicable standards of review are well19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

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

21 For applications, like Zhang’s, governed by the REAL ID

22 Act, the agency may, “[c]onsidering the totality of the

23 circumstances,” base a credibility finding on an asylum

2
1 applicant’s “demeanor, candor, or responsiveness,” the

2 plausibility of his account, and inconsistencies in his

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

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

5 § 1158(b)(1)(B)(iii); see id. at § 1231(b)(3)(C); Xiu Xia

6 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We defer

7 to an IJ’s credibility determination unless, “from the

8 totality of the circumstances, it is plain that no

9 reasonable fact-finder could make such an adverse

10 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 

11 Here, the agency reasonably found Zhang not credible

12 based on a major inconsistency among his credible fear

13 interview, asylum application, and hearing testimony. See

14 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166

15 n.3. Zhang mentions a June 2008 incident with the police at

16 three different places in his asylum application, detailing

17 how the police came to his home, beat him with their fists

18 and feet, and left him in pain. However, he did not mention

19 this incident at all at his credible fear interview or

20 during direct examination. At the hearing, when Zhang was

21 asked how many times he had problems in China, he answered,

22 only once in August 2008. On cross-examination, Zhang

3
1 changed his testimony to say that there had been two

2 incidents with the police, one in June and one in August. 

3 This inconsistency goes to the heart of Zhang’s claim that

4 he suffered past persecution on account of his religion, as

5 the June 2008 incident was the only allegation of arrest or

6 physical harm. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

7 Lin, 534 F.3d at 167. 

8 In addition, Zhang failed to otherwise corroborate his

9 practice of Christianity as he did not call witnesses from

10 his church or family to verify that he attends church in the

11 United States, despite the fact that his hearing date had

12 been set for over a year. See Biao Yang v. Gonzales v.

13 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 

14 Furthermore, the agency considered and reasonably

15 rejected Zhang’s explanations for both his omission of the

16 June 2008 arrest and beating and his lack of corroboration. 

17 When questioned why he did not mention the June 2008

18 incident at the credible fear interview, Zhang offered that

19 the interviewer did not ask the detailed questions and he

20 had failed to explain himself clearly. He further noted

21 that the June incident was not serious and he often forgets

22 to mention it. As the June incident was the only arrest or

4
1 physical harm Zhang suffered in China, the agency was not

2 compelled to credit the explanation, particularly given the

3 detailed account and level of harm described in his asylum

4 application. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

5 Cir. 2005) (A petitioner “must do more than offer a

6 plausible explanation for his inconsistent statements to

7 secure relief; he must demonstrate that a reasonable fact8 finder would be compelled to credit his testimony.”

9 (emphasis original, internal quotations and citation

10 omitted)). 

11 The agency also reasonably rejected Zhang’s explanation

12 that no fellow parishioners or family members could verify

13 his church attendance because they were too busy or out of

14 status, particularly since they lived in New York, he had a

15 year to obtain witnesses, and he made no request for

16 telephonic testimony. Cf. id. 

17 The adverse credibility determination is further

18 supported by the IJ’s demeanor finding, to which we defer. 

19 See Karaj v. Gonzales, 462 F.3d 113, 116 (2d Cir. 2006)

20 (“the IJ’s opportunity to judge demeanor causes us to grant

21 particular deference to credibility findings based on

22 demeanor” (internal quotations and citation omitted)). 

23

5
1 Finally, because the agency’s adverse credibility

2 determination is dispositive, we do not reach the

3 alternative finding that Zhang failed to meet his burden of

4 proof. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a

5 general rule courts and agencies are not required to make

6 findings on issues the decision of which is unnecessary to

7 the results they reach.”). For the foregoing reasons, the

8 petition for review is DENIED. As we have completed our

9 review, any stay of removal that the Court previously

10 granted in this petition is VACATED, and any pending motion

11 for a stay of removal in this petition is DISMISSED as moot. 

12 Any pending request for oral argument in this petition is

13 DENIED in accordance with Federal Rule of Appellate

14 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17

6