15-3721 Zhang v. Sessions BIA Christensen, IJ A205 442 849 

### 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 TO 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 for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **10 th**  **day of April, two thousand seventeen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **DEBRA ANN LIVINGSTON,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **SHAOQIANG ZHANG,** 13 Petitioner **,** 14 15 **v. 15-3721** 16 **NAC** 17 **JEFFERSON B.**  **SESSIONS, III,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Yongbing Zhang, Law Offices 23 of Yongbing Zhang, Chicago, 24 IL. 25 26 **FOR RESPONDENT:** Benjamin C. Mizer, Principal 27 Deputy Assistant Attorney 28 General; Linda S. Wernery, 29 Assistant Director; William 30 C. Minick, Trial Attorney; 312 Office of Immigration 1 Litigation, U.S. Department 2 of Justice, Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review is 7

DENIED. 8 Petitioner Shaoqiang Zhang, a native and citizen of China, 9 seeks review of an October 20, 2015, decision of the BIA 10 affirming a May 2, 2014, decision of an Immigration Judge (“IJ”) 11 denying Zhang’s application for asylum, withholding of removal, 12 and relief under the Convention Against Torture (“CAT”). In 13 re Shaoqiang Zhang , No. A205 442 849 (B.I.A. Oct. 20, 2015), 14 aff’g No. A205 442 849 (Immig. Ct. N.Y. City May 2, 2014). We 15 assume the parties’ familiarity with the underlying facts and 16 procedural history in this case. 17 Under the circumstances of this case, we have reviewed both 18 the BIA’s and IJ’s decisions. Guan v. Gonzales , 432 F.3d 391, 19

394 (2d Cir. 2005). The applicable standards of review are well 20 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 21 Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). 22 For asylum applications like Zhang’s, governed by the REAL 23 ID Act, the agency may, “[c]onsidering the totality of the 24 circumstances,” base a credibility finding on an asylum 253 applicant’s “demeanor, candor, or responsiveness,” the 1 plausibility of his account, and inconsistencies in his 2 statements, “without regard to whether” those inconsistencies 3 go “to the heart of the applicant’s claim.” 8 U.S.C. 4 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 F.3d at 163-64. 5 “We defer . . . to an IJ’s credibility determination unless, 6 from the totality of the circumstances, it is plain that no 7 reasonable fact-finder could make such an adverse credibility 8 ruling.” Xiu Xia Lin , 534 F.3d at 167. Further, “[a] 9 petitioner must do more than offer a plausible explanation for 10 his inconsistent statements to secure relief; he must 11 demonstrate that a reasonable fact-finder would be compelled 12 to credit his testimony.” Majidi v. Gonzales , 430 F.3d 77, 13 80-81 (2d Cir. 2005) (internal quotation marks omitted). For 14 the reasons that follow, we conclude that substantial evidence 15 supports the agency’s finding that Zhang was not credible. 16 First, the agency reasonably ba sed the credibility 17 determination on the omissions from Zhang’s application 18 concerning his guarantee statement and reporting requirement. 19 Xiu Xia Lin , 534 F.3d at 166-68; see also id. at 166 n.3 (“An 20 inconsistency and an omission are . . . functionally equivalent” 21 for credibility purposes). Zhang testified that he signed a 22 guarantee statement in which he promised to report to the police 234 station, that he reported to the police once a month for eight 1 months, and that the police continue to threaten his family 2 members for his failure to report. Zhang’s application, 3 however, omitted any reference to the guarantee statement, his 4 reporting requirement, or the police’s threats. The IJ was not 5 compelled to credit Zhang’s explanation for these omissions. 6 See Majidi , 430 F.3d at 80. 7 Second, the agency reasonably based the credibility 8 determination on the omission from Zhang’s wife’s letters that 9 the police had threatened her for Zhang’s failure to report. 10 See Xiu Xia Lin , 534 F.3d at 167 (explaining that omission of 11 fact from family member’s letter “could have reasonably 12 convinced the IJ that [the] story of persecution was 13 fabricated”). Zhang testified that the people who called his 14 wife identified themselves as being from the “South City Public 15 Security Bureau.” Administrative Rec ord (“A.R.”) 91. 16 However, Zhang’s wife’s first letter makes no mention of 17 threatening calls, and her second letter states that the calls 18 were from “stranger[s].” A.R. 107. The IJ was not required 19 to accept Zhang’s explanation that his wife referred to the 20 callers as strangers because she did not know them personally. 21 See Majidi , 430 F.3d at 80. 225 Third, the agency reasonably based the credibility finding 1 on the omission from Zhang’s mother’s letter that the family 2 had been threatened by the police due to Zhang’s failure to 3 report. Xiu Xia Lin , 534 F.3d at 167. Zhang’s mother’s letter 4 does not mention threats; however, Zhang testified that the 5 police had made threatening calls to his “family members.” 6

A.R. 78. Zhang does not challenge the agency’s reliance on this 7 omission on appeal. 8 Finally, the adverse credibility determination was 9 properly based on the inconsistency between Zhang’s testimony 10 and evidence about whether Zheng, or anyone in his family, had 11 kept in touch with his friend who owned the Falun Gong books 12 found in Zhang’s home. See Xiu Xia Lin , 534 F.3d at 163-64. 13 Zhang testified that neither he nor his family has had recent 14 contact with the friend. However, Zhang submitted a letter 15 from the friend in support of his application. When confronted 16 with this discrepancy, Zhang testified that his wife obtained 17 the letter through the friend’s family. The IJ reasonably 18 found Zhang’s testimony and supporting evidence inconsistent, 19 and he was not compelled to accept Zhang’s corresponding 20 explanation. See Siewe v. Gonzales , 480 F.3d 160, 167 (2d Cir. 21 2007) (“Decisions as to . . . which of competing inferences to 22 draw are entirely within the province of the trier of fact.” 236 (alteration in original) (quoting Palazzo ex rel Delmage v. 1 Corio , 232 F.3d 38, 44 (2d Cir. 2000))); Majidi , 430 F.3d at 2

80. 3 Given the foregoing o mission and inconsistency findings, 4 the totality of the circumstances supports the adverse 5 credibility determination. See Xiu Xia Lin , 534 F.3d at 167. 6 That determination is dispositive of Zhang’s claims for asylum, 7 withholding of removal, and CAT relief because all three claims 8 are based on the same factual predicate. See Paul v. Gonzales , 9 444 F.3d 148, 156-57 (2d Cir. 2006). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our rev iew, any stay of removal 12 that the Court previously granted in this petition is VACATED, 13 and any pending motion for a stay of removal in this petition 14 is DISMISSED as moot. Any pending request for oral argument 15 in this petition is DENIED in accordance with Federal Rule of 16 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 17 34.1(b). 18

FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20