12-1095

Zhang v. Holder

BIA

Hom, IJ

A089 913 177

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 4th 4 day of June, two thousand thirteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 BARRINGTON D. PARKER,

9 DENNY CHIN,

10 Circuit Judges. 

11 _______________________________________

12

13 QIANG ZHANG,

14 Petitioner, 

15

16 v. 12-1095

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Charles Christophe, New York, NY.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Allen W. Hausman,

27 Senior Litigation Counsel; Christina

28 Bechak Parascandola, Trial Attorney,

29 Office of Immigration Litigation,

30 United States Department of Justice,

31 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 Qiang Zhang, a native and citizen of the People’s

6 Republic of China, seeks review of a February 27, 2012,

7 decision of the BIA affirming the February 4, 2010, decision

8 of Immigration Judge (“IJ”) Sandy K. Hom, which denied his

9 application for asylum, withholding of removal and relief

10 under the Convention Against Torture (“CAT”). In re Qiang

11 Zhang, No. A089 913 177 (B.I.A. Feb. 27, 2012), aff’g No.

12 A089 913 177 (Immig. Ct. N.Y. City Feb. 4, 2010). We assume

13 the parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we have

16 considered both the IJ’s and the BIA’s opinions “for the

17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237

18 (2d Cir. 2008). The applicable standards of review are

19 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also

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

21 For asylum applications, such as Zhang’s, governed by

22 the amendments made to the Immigration and Nationality Act

23 by the REAL ID Act of 2005, the agency may, considering the

2
1 totality of the circumstances, base a credibility finding on

2 any inconsistencies in the applicant’s statements, without

3 regard to whether the inconsistencies go “to the heart of

4 the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii);

5 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)

6 (per curiam). Zhang challenges only the agency’s denial of

7 relief based on its adverse credibility determination, and

8 does not contest the agency’s finding that he failed to

9 corroborate his claims.

10 Zhang claimed that he was arrested, detained, beaten

11 and ultimately hospitalized, because of his participation in

12 an underground house church in China. Contrary to Zhang’s

13 contention, the agency reasonably found that his testimony

14 was incredible, in part, because he testified that he was

15 unable to leave the hospital from December 29, 2007, until

16 January 22, 2008, but later testified that the doctors

17 “allow[ed him] to be discharged” on January 10, 2008. Xiu

18 Xia Lin, 534 F. at 167. Zhang’s explanation for this

19 discrepancy – his brief outing may not have been noticed by

20 the rest of the hospital staff – is insufficient, even if

21 plausible, to compel the conclusion that his testimony was

22 credible, given that his testimony was also inconsistent

3
1 with his asylum application, which omitted reference to a

2 discharge, as well as a hospital record he submitted which

3 indicated only that he was discharged on January 22, 2008. 

4 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)

5 (finding that 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 in original) (internal quotation marks and

10 citations omitted)). Similarly, Zhang’s contention that

11 there are plausible explanations for the inconsistent

12 testimony of his only witness does not compel reversal. Id.

13 As the only evidence of a threat to Zhang’s life or

14 freedom depended upon his credibility, the adverse

15 credibility determination in this case necessarily precludes

16 success on his claims for asylum, withholding of removal,

17 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d

18 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

19 520, 523 (2d Cir. 2005). 

20 For the foregoing reasons, the petition for review is

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

22 removal that the Court previously granted in this petition

4
1 is VACATED, and any pending motion for a stay of removal in

2 this petition is DISMISSED as moot. Any pending request for

3 oral argument in this petition is DENIED in accordance with

4 Federal Rule of Appellate Procedure 34(a)(2), and Second

5 Circuit Local Rule 34.1(b).

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk

5