10-1660-ag Zhu v. Holder BIA Schoppert, IJ A099 540 379 

### 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 6 th** **day of April, two thousand eleven.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge**,** 8 **ROBERT A. KATZMANN,** 9 **DENNY CHIN,** 10 Circuit Judges**.** 11

**_______________________________________** 12 13 **Ze Feng Zhu,** 14 Petitioner**,** 15 16 **v. 10-1660-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_______________________________________** 22 23 **FOR PETITIONER: Lee Ratner, Law Offices of Michael** 24 **Brown, New York, New York.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Thomas B. Fatouros, Senior** 282 **Litigation Counsel; Karen Y.** 1 **Stewart, Attorney, Office of** 2 **Immigration Litigation, United** 3 **States Department of Justice,** 4 **Washington, D.C.** 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Ze Feng Zhu, a native and citizen of China, seeks 11 review of an April 16, 2010, decision of the BIA affirming 12 the April 28, 2008, decision of Immigration Judge (“IJ”) 13 Douglas Schoppert, which denied his application for asylum, 14 withholding of removal, and relief under the Convention 15 Against Torture (“CAT”). In re Ze Feng Zhu , No. A099 540 16 379 (B.I.A. Apr. 16, 2010),aff’gNo. A099 540 379 (Immig. 17 Ct. N.Y. City Apr. 28, 2008). We assume the parties’ 18 familiarity with the underlying facts and procedural history 19 in this case. 20 Under the circumstances of this case, we review the 21 decision of the IJ as supplemented by the BIA. See Yan Chen 22

v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 23 applicable standards of review are well-established. See 24 8 U.S.C. § 1252(b)(4)(B); see also Salimatou Bah v. Mukasey, 25 529 F.3d 99, 110 (2d Cir. 2008) ; Manzur v. U.S. Dep't of 263 Homeland Sec. , 494 F.3d 281, 289 (2d Cir. 2007). 1 The only issue before us is whether the agency erred in 2 denying Zhu’s application for asylum and withholding of 3 removal premised upon his fear of persecution based on his 4 religion, as Zhu has not challenged the denial of CAT relief 5 or the other bases for relief raised before the agency. 6 For asylum applications governed by the amendments made 7 to the Immigration and Nationality Act by the REAL ID Act of 8 2005, the agency may, considering the totality of the 9 circumstances, base a credibility finding on an asylum 10 applicant’s “demeanor, candor, or responsiveness,” the 11 plausibility of his or her account, and inconsistencies in 12 his or her statements, without regard to whether they go “to 13 the heart of the applicant’s claim.” See8 U.S.C. 14 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey,534 15 F.3d 162, 167 (2d Cir. 2008). We will “defer . . . to an 16 IJ’s credibility determination unless, from the totality of 17 the circumstances, it is plain that no reasonable fact18 finder could make” such a ruling. Xiu Xia Lin , 534 F.3d at 19 167. In this case, the IJ reasonably based his adverse 20 credibility determination on the unexplained inconsistencies 21 in Zhu’s testimony regarding his experiences with 224 underground churches in China, and on Zhu’s demeanor. Zhu 1 testified that he attended two different underground 2 Catholic churches in China, both of which were raided by the 3 police and shut down, and that after the churches were shut 4 down, the police came to his home looking for him. In his 5 asylum application, he simply stated that he had gone to 6 Catholic Mass twice while in China. He did not mention that 7 either of the churches he went to were raided by the police, 8 or that police came to his home looking for him, nor did he 9 mention that he fled to, and then lived in, Shanghai. When 10 asked in his hearing about these omissions, Zhu had no 11 explanation, other than that he omitted the information. 12 Substantial evidence thus supports the IJ’s finding that 13 Zhu’s omissions, and failure to reasonably explain those 14 omissions, undermined his credibility. See id . The IJ 15 additionally found that Zhu appeared insincere, and “when 16 questioned about inconsistencies or omissions, he simply did 17 not respond for lengthy periods.” We generally defer to an 18 IJ’s demeanor findings, and will do so here. See Majidi v. 19

Gonzales , 430 F.3d 77, 81 n.1 (2d Cir. 2005). In this case, 20 the totality of the circumstances, including Zhu’s 21 omissions, lack of explanation, and demeanor, support the 225 agency’s adverse credibility determination. See8 U.S.C. 1 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 2 The BIA found that even if it accepted Zhu’s assertion 3 that he would continue to practice his Catholic faith if he 4 were to return to China, Zhu did not establish a well5 founded fear of persecution because there was no evidence 6 that the Chinese government was aware, or would become 7 aware, of his Catholicism. An applicant claiming only a 8 prospective fear of persecution must make some showing that 9 the government is aware or is likely to become aware of the 10 activities that might lead persecution. See Hongsheng Leng 11 v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). Moreover, the 12 more recent reports of country conditions suggested that 13 while underground churches were interfered with by the 14 government, treatment varied greatly in different areas, and 15 in some localities the churches were tolerated. The BIA 16 reasonably found that this differing treatment undermined 17 Zhu’s fear of being singled out for persecution, because a 18 fear is not objectively reasonable if it lacks “solid 19 support” in the record and is merely “speculative at best.” 20 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005). 21 Accordingly, the agency reasonably concluded that Zhu failed 22 to establish a well-founded fear of persecution based on his 236 practice of Catholicism. 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DENIED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9

FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 13