         11-3971                                                                       BIA
         Du v. Holder                                                          Van Wyke, IJ
                                                                               A089 253 759
                         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,
 4       on the 30th day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROSEMARY S. POOLER,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       QI CHAO DU,
14                Petitioner,
15
16                      v.                                      11-3971
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Feng Li, Moslemi and Associates,
24                                     Inc., New York, N.Y.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Paul Fiorino,
28                                     Senior Litigation Counsel; Franklin
29                                     M. Johnson, Jr., Trial Attorney,
30                                     Office of Immigration Litigation,
31                                     United States Department of Justice,
32                                     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       Qi Chao Du, a native and citizen of the People’s

 6   Republic of China, seeks review of a September 7, 2011,

 7   order of the BIA affirming the June 22, 2010, decision of

 8   Immigration Judge (“IJ”) William Van Wyke, which denied his

 9   applications for asylum, withholding of removal, and relief

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

11   Du, No. A089 253 759 (B.I.A. Sept. 7, 2011), aff’g No. A089

12   253 759 (Immig. Ct. N.Y. City June 22, 2010).      We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we review both

16   the IJ’s and BIA’s decisions.       See Zaman v. Mukasey, 514

17   F.3d 233, 237 (2d Cir. 2008) (per curiam).      The applicable

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

19   1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95

20   (2d Cir. 2008).

21       For asylum applications such as this one, governed by

22   the REAL ID Act of 2005, the agency may, “[c]onsidering the

23   totality of the circumstances,” base a credibility finding

24   on an asylum applicant’s “demeanor, candor, or

                                     2
 1   responsiveness,” the plausibility of his or her account, and

 2   inconsistencies in his or her statements, without regard to

 3   whether they go “to the heart of the applicant’s claim.”

 4   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

 5   534 F.3d 162, 167 (2d Cir. 2008) (per curiam).   We “defer

 6   . . . to an IJ’s credibility determination unless, from the

 7   totality of the circumstances, it is plain that no

 8   reasonable fact-finder could make such an adverse

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

10       In this case, the IJ reasonably based his adverse

11   credibility determination pertaining to Du’s past

12   persecution claim on inconsistencies between Du’s testimony

13   and submitted materials, and on the implausible and

14   inconsistent nature of certain aspects of the testimony.

15   First, although Du testified that his church ceased to meet

16   following his December 2006 arrest, a December 2007 letter

17   from the “person in charge” of the church neither mentioned

18   the arrest nor suggested that the church had ceased to meet.

19   Second, during the merits hearing, Du initially testified

20   that he learned that the church no longer met when he

21   simultaneously encountered the two members he had been

22   arrested with, but then he changed his testimony, stating


                                   3
 1   that he encountered them separately.    Where, as here, an

 2   inconsistency is dramatic, the agency may rely on it without

 3   first soliciting an explanation from the applicant.     See

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

 5   although Du alleged that the police frequently visited his

 6   house following his arrest, his mother’s letter made no

 7   mention of such visits, even though she stated that he was

 8   required to report to the police station regularly.     Fourth,

 9   the IJ reasonably concluded that it was implausible for a

10   senior member of a longstanding illegal church to send Du

11   and two others to hand out flyers, even though they had

12   never done it before, without instruction or advance

13   planning, as Du described in his merits hearing testimony.

14   See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007)

15   (per curiam) (where “the reasons for [the IJ’s] incredulity

16   are evident,” the implausibility finding is supported by

17   substantial evidence).   Moreover, even assuming this

18   particular finding was speculative, there are sufficient

19   other grounds to support the adverse credibility

20   determination.   See Xiao Ji Chen v. U.S. Dep't of Justice,

21   471 F.3d 315, 336 (2d Cir. 2006).

22



                                   4
 1       Additionally, the IJ reasonably determined that Du had

 2   not demonstrated a well-founded fear of future persecution.

 3   The IJ correctly noted that Du provided no evidence that

 4   underground church members are commonly persecuted in China

 5   generally or in his home province, and Du conceded that,

 6   besides the alleged December 2006 incidents, no member of

 7   his church has ever been arrested or persecuted.       See Jian

 8   Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per

 9   curiam) (a fear is not objectively reasonable if it lacks

10   “solid support” in the record and is merely “speculative at

11   best”).

12       Accordingly, because the agency did not err in finding

13   that Du failed to demonstrate either past persecution or a

14   well-founded fear of persecution, it reasonably denied him

15   asylum and withholding of removal as those claims were based

16   on the same factual predicate.       See Paul v. Gonzales, 444

17   F.3d 148, 156 (2d Cir. 2006).       Du does not challenge the

18   agency’s denial of CAT relief.

19

20

21

22

23
                                     5
1       For the foregoing reasons, the petition for review is

2   DENIED.    As we have completed our review, and Du’s pending

3   motion for a stay of removal in this petition is DISMISSED

4   as moot.

5

6                                FOR THE COURT:
7                                Catherine O’Hagan Wolfe, Clerk
8
9




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