15-1329 

Zhao v. Lynch 

BIA 

Van Wyke, IJ 

A088 345 824 

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.

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

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

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

29th 4 day of November, two thousand sixteen. 

5 

6 PRESENT: 

7 RICHARD C. WESLEY,

8 DENNY CHIN, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 XIN ZHAO, 

14 Petitioner, 

15 

16 v. 15-1329 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Zhen Liang Li, New York, NY. 

24 

25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

26 Assistant Attorney General; John S. 

27 Hogan, Assistant Director; Laura 

28 M.L. Maroldy, Trial Attorney, Office 

29 of Immigration Litigation, United 

30 States Department of Justice, 

31 Washington, DC. 
2 

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 is 

4 DENIED. 

5 Petitioner Xin Zhao, a native and citizen of the People’s 

6 Republic of China, seeks review of a March 26, 2015, decision 

7 of the BIA affirming an October 24, 2013, decision of an 

8 Immigration Judge (“IJ”) denying Zhao’s application for asylum, 

9 withholding of removal, and relief under the Convention Against 

10 Torture (“CAT”). In re Xin Zhao, No. A088 345 824 (B.I.A. Mar. 

11 26, 2015), aff’g No. A088 345 824 (Immig. Ct. N.Y. City Oct. 

12 24, 2013). We assume the parties’ familiarity with the 

13 underlying facts and procedural history in this case. 

14 We have considered both the IJ’s and the BIA’s opinions “for 

15 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

16 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 

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

18 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 

19 Cir. 2009). 

20 The agency may, in light of “the totality of the 

21 circumstances . . . base a credibility determination on the 

22 demeanor, candor, or responsiveness of the applicant,” the 

23 plausibility of the applicant’s account, and inconsistencies 
3 

1 in his statements, “without regard to whether” those 

2 inconsistencies go “to the heart of the applicant’s claim.” 8 

3 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 

4 162, 165 (2d Cir. 2008). Under the “substantial evidence” 

5 standard of review, “we defer . . . to an IJ’s credibility 

6 determination unless, from the totality of the circumstances, 

7 it is plain that no reasonable fact-finder could make such an 

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

9 The determination against Zhao is sound. Zhao claimed 

10 that after being fined by family planning authorities for having 

11 a second child, he made extra money by distributing Falun Gong 

12 fliers on the street. The IJ cited several inconsistencies and 

13 unresponsive answers in finding Zhao not to be credible. 

14 The IJ asked Zhao about his interactions with the 

15 recipients of the fliers--that is, how Zhao would respond if 

16 someone asked why Falun Gong was a good idea. Zhao responded 

17 that he would walk away, then described the contents of the 

18 fliers, then explained why he saw the value of Falun Gong (though 

19 he was not a practitioner), and finally testified that he would 

20 tell people that Falun Gong is not an evil organization as 

21 charged by the Chinese government. “Drawing inferences from 

22 direct and circumstantial evidence is a routine and necessary 

23 task of any factfinder.” Siewe v. Gonzales, 480 F.3d 160, 167 
4 

1 (2d Cir. 2007). The IJ had the discretion to find that Zhao’s 

2 nonresponsive and inconsistent answers called into question 

3 whether he actually handed out the fliers. 

4 Another area of concern related to how Zhao prepared for 

5 the risk of distributing fliers for a banned organization. 

6 Several times, the IJ asked Zhao how he was instructed to respond 

7 if the police questioned him. Zhao responded by describing how 

8 he actually answered questions from the police, that he was told 

9 to say he got the fliers from the “outside,” and finally, that 

10 he could just give any name so long as he did not reveal the 

11 source of the fliers. The IJ reasonably found that Zhao’s vague 

12 answers to this question eroded his credibility. See Jin Shui 

13 Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003), overruled 

14 on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 

15 F.3d 296 (2d Cir. 2007). 

16 A third area concerned whether Zhao told his parents that 

17 he was distributing Falun Gong fliers, and if not, why not. 

18 Zhao testified that they learned about it after his arrest, and 

19 that he withheld that information from them so that they would 

20 not worry. But earlier, Zhao had testified that he did not 

21 think it would be serious if he was caught distributing fliers. 

22 When the IJ followed up, Zhao said that because he was trying 

23 to avoid sterilization, he did not tell many people that he was 
5 

1 giving out the fliers. Zhao then explained that he distributed 

2 the fliers to strangers in a different village. “[I]n 

3 assessing the credibility of an asylum applicant’s testimony, 

4 an IJ is entitled to consider whether the applicant’s story is 

5 inherently implausible.” Wensheng Yan v. Mukasey, 509 F.3d 63, 

6 66 (2d Cir. 2007). The IJ expressed reasonable incredulity 

7 about Zhao’s story: if he was worried about forced 

8 sterilization, why was he handing out fliers to strangers? And 

9 if he was handing out fliers to strangers, why hide it from his 

10 family? 

11 Another problematic area was Zhao’s marital history. He 

12 testified that because of the sterilization threat and their 

13 desire to have more children, he and his wife divorced and later 

14 remarried. He omitted that fact from his asylum application. 

15 The IJ was entitled to treat this omission as an inconsistency, 

16 particularly given that Zhao’s work for Falun Gong was 

17 purportedly rooted in the sterilization threat. Xiu Xia Lin, 

18 534 F.3d at 166 n.3 (an “omission in a document submitted to 

19 corroborate the applicant’s testimony, like a direct 

20 inconsistency between one or more of those forms of evidence, 

21 can serve as a proper basis for an adverse credibility 

22 determination”). The IJ was not compelled to credit Zhao’s 

23 explanation for the omission: that he thought his divorce was 
6 

1 not important. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 

2 2005) (explaining that the agency is not required to credit an 

3 explanation that is merely plausible or possible). 

4 The lack of responsiveness, inconsistencies, and 

5 implausibilities of Zhao’s testimony cast doubt on whether he 

6 actually distributed Falun Gong fliers or was persecuted for 

7 doing so. His asylum, withholding of removal, and CAT claims 

8 were based on the same factual predicate, and so the adverse 

9 credibility determination was dispositive as to all three. See 

10 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 

11 For the foregoing reasons, the petition for review is 

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

13 that the Court previously granted in this petition is VACATED, 

14 and any pending motion for a stay of removal in this petition 

15 is DISMISSED as moot. Any pending request for oral argument 

16 in this petition is DENIED in accordance with Federal Rule of 

17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

18 34.1(b). 

19 FOR THE COURT: 

20 Catherine O=Hagan Wolfe, Clerk