09-4212-ag

Zhang v. Holder

BIA

Nelson, IJ

A 094 927 000

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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 9 day of June, two thousand ten. th

PRESENT:

GUIDO CALABRESI,

RICHARD C. WESLEY,

PETER W. HALL,

 Circuit Judges.

_______________________________________

YU ZHANG,

Petitioner, 

 v. 09-4212-ag

NAC

ERIC H. HOLDER, JR., U.S. ATTORNEY 

GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Guang Jun Gao, Flushing, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Carl McIntyre, Assistant

Director; Steven F. Day, Trial

Attorney, Office of Immigration

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

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Yu Zhang, a native and citizen of China,

seeks review of the September 11, 2009, order of the BIA

affirming the December 20, 2007, decision of Immigration

Judge (“IJ”) Barbara A. Nelson denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Yu Zhang, No. A

094 927 000 (B.I.A. Sept. 11, 2009), aff’g No. A 094 927 000

(Immig. Ct. N.Y. City Dec. 20, 2007). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we review both

the IJ’s and the BIA’s decisions. See Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable

standards of review are well-established. See 8 U.S.C.

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

(2d Cir. 2009).

Substantial evidence supports the agency’s adverse

credibility determination. Zhang argued that his failure to

mention his alleged arrest in his asylum application was too

insignificant to undermine his credibility. Under the REAL

ID Act, however, an IJ may rely on any inconsistency between

an applicant’s oral and written statements when making an

adverse credibility determination. See 8 U.S.C. §

1158(b)(1)(B)(iii). However, the discrepancy the IJ

identified was not insignificant. To the contrary, Zhang’s

failure to mention his arrest undermines the very basis of

his claim: that the Chinese government seeks to punish him

for his resistance to the family planning policy. The IJ

also properly noted that none of the letters from Zhang’s

father or sister mentioned that Zhang was ever arrested or

detained. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 341 (2d Cir. 2006) (holding that an asylum

applicant’s failure to corroborate his testimony may bear on

credibility when the absence of corroboration makes him

unable to rehabilitate testimony that has already been

called into question). The IJ also considered and

reasonably rejected Zhang’s argument that “the term ‘arrest’

can be rendered in so many different ways in Chinese” that

he could “be easily thrown into confusion” about its
3

meaning. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

Cir. 2005) (holding that the agency need not credit an

applicant’s explanations for inconsistent testimony unless

those explanations would compel a reasonable fact-finder to

do so).

Although Zhang also argues that his asylum application

may have been incorrectly prepared due to poor translation

or “by some legal assistant who might have carelessly

ignored some details while preparing” the application, he

presents no evidence in support of this argument and, in any

event, he did not raise it before the BIA. See Foster v.

INS, 376 F.3d 75, 78 (2d Cir. 2004) (holding that

petitioners must raise to the BIA the specific issues they

later raise in this Court). 

Ultimately, the agency’s credibility determination was

supported by substantial evidence. See 8 U.S.C.

§ 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167. Therefore,

it did not err in denying Zhang’s application for asylum and

withholding of removal. See Paul v. Gonzales, 444 F.3d 148,

156 (2d Cir. 2006). 

Finally, contrary to Zhang’s argument that the IJ

employed a “heightened standard” in evaluating his CAT

claim, the IJ applied the correct standard in determining

that Zhang failed to submit any “particularized evidence”

that it was “more likely than not that he would be tortured

if returned to China.” See Mu-Xing Wang v. Ashcroft, 320

F.3d 130, 143-44 (2d Cir. 2003) (holding that the relevant

inquiry is whether someone in the petitioner’s “particular

alleged circumstances” is more likely than not to be

tortured); see also 8 C.F.R. § 208.16(c)(4). 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted is VACATED, and

any pending motion for a stay of removal is DISMISSED as

moot. Any pending request for oral argument is DENIED in

accordance with Federal Rule of Appellate Procedure

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

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk