Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney *

General Eric H. Holder Jr. is automatically substituted for former Attorney

General Michael B. Mukasey as respondent in this case.

08-4293-ag

Zhu v. Holder

BIA

Schoppert, IJ

A95 716 389

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 Daniel Patrick Moynihan

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

4 New York, on the 1 day of February, two thousand ten. st

5

6 PRESENT:

7 JON O. NEWMAN

8 ROSEMARY S. POOLER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11

12 _______________________________________

13

14 ZHI LING ZHU, also known as TSE LIN ZHU,

15 Petitioner, 

16

17 v. 08-4293-ag

18 NAC

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

20 ATTORNEY GENERAL,*

21 Respondent.

22 _______________________________________

23

24

25
2

1 FOR PETITIONER: Gary J. Yerman, New York, New York,

2 New York.

3

4 FOR RESPONDENT: Michael F. Hertz, Acting Assistant

5 Attorney General; Michelle Gorden

6 Latour, Assistant Director; Tracie

7 N. Jones, Trial Attorney, Office of

8 Immigration Litigation, United

9 States Department of Justice,

10 Washington, D.C.

11

12 UPON DUE CONSIDERATION of this petition for review of a

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

14 ORDERED, ADJUDGED, AND DECREED, that the petition for review

15 is DENIED.

16 Zhi Ling Zhu, a native and citizen of the People’s

17 Republic of China, seeks review of an August 11, 2008 order

18 of the BIA, affirming the May 17, 2007 decision of

19 Immigration Judge (“IJ”) Douglas Schoppert, which denied her

20 application for asylum, withholding of removal, and relief

21 under the Convention Against Torture (“CAT”). In re Zhi

22 Ling Zhu, No. A95 716 389 (B.I.A. Aug. 11, 2008), aff’g No.

23 A95 716 389 (Immig. Ct. N.Y. City May 17, 2007). We assume

24 the parties’ familiarity with the underlying facts and

25 procedural history in this case.

26 “Where . . . the BIA agrees with the IJ’s conclusion

27 that a petitioner is not credible and, without rejecting any

28 of the IJ’s grounds for decision, emphasizes particular

29 aspects of that decision, we . . . review both the BIA’s and
3

1 IJ’s opinions -- or more precisely, we review the IJ’s

2 decision including the portions not explicitly discussed by

3 the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

4 Cir. 2005). We review the agency’s factual findings,

5 including adverse credibility findings, under the

6 substantial evidence standard. See 8 U.S.C. §

7 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

8 (2d Cir. 2008). 

9 “We defer . . . to an IJ’s credibility determination

10 unless, from the totality of the circumstances, it is plain

11 that no reasonable fact-finder could make such an adverse

12 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For

13 asylum applications governed by the REAL ID Act, the agency

14 may, considering the totality of the circumstances, base a

15 credibility finding on an asylum applicant’s demeanor, the

16 plausibility of his or her account, and inconsistencies in

17 his or her statements, without regard to whether they go “to

18 the heart of the applicant’s claim.” 8 U.S.C. §

19 1158(b)(1)(B)(iii). 

20 Substantial evidence supports the agency’s adverse

21 credibility determination. Indeed, the IJ reasonably relied

22 on the inconsistency between Zhu’s testimony that she had
4

1 never been arrested and her statement during her credible

2 fear interview that she had been arrested for passing out

3 Christian information flyers. Moreover, there can be no

4 question as to the reliability of the record of Zhu’s

5 statements during her credible fear interview where she

6 admitted making such inconsistent statements. Cf.

7 Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004)

8 (noting that where discrepancies and omissions arise in the

9 context of an applicant’s statements during an airport

10 interview, the agency and this Court must closely examine

11 the interview to ensure that it represents a “sufficiently

12 accurate record” of the applicant’s statements to merit

13 consideration in determining whether the applicant is

14 credible). Furthermore, the IJ reasonably declined to

15 credit Zhu’s explanation that her smuggler told her to

16 exaggerate her claim in order to obtain asylum, finding that

17 her exaggeration demonstrated her willingness to lie to

18 immigration officials. See Majidi v. Gonzales, 430 F.3d 77,

19 80-81 (2d Cir. 2005). 

20 Ultimately, because a reasonable fact-finder would not

21 be compelled to conclude to the contrary, the IJ’s adverse

22 credibility determination was supported by substantial
5

1 evidence. See Xiu Xia Lin, 534 F.3d at 165-67. Thus, the

2 agency properly denied Zhu’s application for asylum,

3 withholding of removal, and CAT relief insofar as it was

4 based on her practice of Christianity in China because each

5 of these claims was based on the same factual predicate and

6 Zhu’s testimony as to the underlying facts was not credited

7 by the IJ. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

8 2006).

9 Additionally, the agency did not err in finding that

10 Zhu failed to demonstrate a well-founded fear of persecution

11 on account of her religious activities in the United States,

12 as she does not cite any evidence in the record that

13 supports her claim of such a fear. See Hongsheng Leng v.

14 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“[T]o establish a

15 well-founded fear of persecution in the absence of any

16 evidence of past persecution, an alien must make some

17 showing that authorities in h[er] country of nationality are

18 either aware of h[er] activities or likely to become aware

19 of h[er] activities.”). Therefore, the agency reasonably

20 denied her application for asylum, withholding of removal,

21 and CAT relief insofar as it was based on her practice of

22 Christianity in the United States. See Paul, 444 F.3d at

23 156.
6

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, the pending motion

3 for a stay of removal in this petition is DISMISSED as moot.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6

7