     15-2076
     Zhou v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 050 698
                          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
 4   14th day of July, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            DENNIS JACOBS,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   LING YAN ZHOU,
15            Petitioner,
16
17                   v.                                              15-2076
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Vlad Kuzmin, Kuzmin & Associates,
25                                       P.C., New York, New York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; John W.
29                                       Blakely, Assistant Director; W.
30                                       Daniel Shieh, Trial Attorney, Office
31                                       of Immigration Litigation, United
32                                       States Department of Justice,
33                                       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 is

 4   DENIED.

 5         Petitioner Ling Yan Zhou, a native and citizen of the

 6   People’s Republic of China, seeks review of a May 29, 2015,

 7   decision of the BIA affirming a November 5, 2013, decision of

 8   an Immigration Judge (“IJ”) denying Zhou’s application for

 9   asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).     In re Ling Yan Zhou, No. A205 050 698

11   (B.I.A. May 29, 2015), aff’g No. A205 050 698 (Immig. Ct. N.Y.

12   City Nov. 5, 2013).    We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14         We have reviewed the IJ’s decision as modified by the BIA,

15   i.e., minus the IJ’s pretermission of Zhou’s asylum application

16   as untimely.   See Xue Hong Yang v. U.S. Dep’t of Justice, 426

17   F.3d 520, 522 (2d Cir. 2005).        The applicable standards of

18   review are well established.    See 8 U.S.C. § 1252(b)(4)(B); Xiu

19   Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).           For

20   asylum applications like Zhou’s, governed by the REAL ID Act,

21   the   agency   may,   “[c]onsidering     the     totality   of     the

22   circumstances . . . base a credibility determination on the

23   demeanor,   candor,   or   responsiveness   of   the   applicant    or
                                      2
1    witness, the inherent plausibility of the applicant’s or

2    witness’s account,” and inconsistencies in an applicant’s

3    statements   and   other   record       evidence   “without   regard   to

4    whether” they go “to the heart of the applicant’s claim.”              8

5    U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

6    As discussed below, substantial evidence supports the IJ’s

7    adverse credibility determination.

8        The IJ reasonably relied on her observations of Zhou’s

9    demeanor.    Particular deference is given to the trier of fact’s

10   assessment of demeanor, Majidi v. Gonzales, 430 F.3d 77, 81 n.1

11   (2d Cir. 2005), and the record supports the IJ’s finding, as

12   Zhou gave numerous nonresponsive answers to simple questions.

13       The IJ reasonably relied on inconsistencies that further

14   support both the demeanor finding and the adverse credibility

15   determination as a whole.    Li Hua Lin v. U.S. Dep’t of Justice,

16   453 F.3d 99, 109 (2d Cir. 2006).        Zhou testified that her mother

17   was with her during her forced abortion, after which she took

18   Zhou home.   Zhou’s mother’s letter stated Zhou had an abortion,

19   but did not mention that she was with Zhou for the procedure.

20   See Xiu Xia Lin, 534 F.3d at 166 n.3 (holding that “[a]n

21   inconsistency and an omission are . . . functionally equivalent”

22   for credibility purposes).     The IJ was not required to credit

23   Zhou’s explanation, as she was unable to explain the omission.
                                         3
1    Majidi, 430 F.3d at, 80.       The IJ found that this inconsistency

2    undermined the crux of Zhou’s claim because her mother was the

3    only person who could corroborate whether Zhou had an abortion.

4    See Xian Tuan Ye v. DHS, 446 F.3d 289, 294-95 (2d Cir. 2006).

5           The adverse credibility determination is also supported by

6    a second inconsistency.       On cross examination, the Government

7    asked Zhou when she last had her IUD examined.         Zhou initially

8    stated September 2001, but when asked corrected to September

9    2011.    In the absence of the demeanor issues, a reasonable

10   factfinder might easily have accepted Zhou’s explanation that

11   she merely misspoke.      Majidi, 430 F.3d at 80.   However, the IJ

12   emphasized (and the record confirms) that Zhou gave minimal,

13   stilted answers to many questions, and supplied detail only as

14   to the abortion suggesting that Zhou was “testifying from a

15   script rather than from experience.”        Li Hua Lin, 453 F.3d at

16   109.

17          Finally,    the   IJ   reasonably   concluded    that   Zhou’s

18   corroborating evidence was insufficient to rehabilitate her

19   discredited testimony.        Biao Yang v. Gonzales, 496 F.3d 268,

20   273 (2d Cir. 2007).        The letter from Zhou’s mother omitted

21   mention that she was present for the abortion (as Zhou

22   testified).       The IJ reasonably gave limited weight to the only

23   other evidence directly corroborating Zhou’s claim, a letter
                                        4
1    from her aunt that provided no details and did not state that

2    the aunt was present for any of the events in question.

3         Given inconsistencies in Zhou’s testimony, as well as

4    Zhou’s poor demeanor and lack of corroborating evidence, we

5    conclude that the “totality of the circumstances” supports the

6    adverse credibility determination.        See Xiu Xia Lin, 534 F.3d

7    at   167.     That   determination   is   dispositive   of   asylum,

8    withholding of removal, and CAT relief because all three forms

9    of relief relied on the same factual predicate.         See Paul v.

10   Gonzales, 444 F.3d 148, 156 (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




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