     14-4185
     Zhou v. Lynch
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A201 133 804
                          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   4th day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            JON. O. NEWMAN,
 8            ROSEMARY S. POOLER,
 9            BARRINGTON D. PARKER,
10                 Circuit Judges.
11   _____________________________________
12
13   SHU PING ZHOU,
14            Petitioner,
15
16                   v.                                              14-4185
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Troy Nader Moslemi, Flushing, New
24                                       York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General, Civil
28                                       Division; Dawn S. Conrad, Senior
29                                       Litigation Counsel; Edward E.
1                               Wiggers, Senior Litigation Counsel,
2                               Office of Immigration Litigation,
3                               United 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 is

9    DENIED.

10       Petitioner Shu Ping Zhou, a native and citizen of China,

11   seeks review of an October 28, 2014, decision of the BIA

12   affirming a December 3, 2012, decision of an Immigration Judge

13   (“IJ”) denying Zhou’s application for asylum, withholding of

14   removal, and relief under the Convention Against Torture

15   (“CAT”).    In re Shu Ping Zhou, No. A201 133 804 (B.I.A. Oct.

16   28, 2014), aff’g No. A201 133 804 (Immig. Ct. N.Y. City Dec.

17   3, 2012).      We assume the parties’ familiarity with the

18   underlying facts and procedural history in this case.

19       Under the circumstances of this case, we have reviewed both

20   the BIA’s and IJ’s decisions.       See Yun-Zui Guan v. Gonzales,

21   432 F.3d 391, 394 (2d Cir. 2005).     The applicable standards of

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



                                     2
1    see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

2    2008).

3        For asylum applications, like Zhou’s, governed by the REAL

4    ID Act, the agency may, “[c]onsidering the totality of the

5    circumstances,” base a credibility finding on inconsistencies

6    in an applicant’s statements and other record evidence “without

7    regard to whether an inconsistency, inaccuracy, or falsehood

8    goes to the heart of the applicant’s claim.”            8 U.S.C.

9    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

10       The agency’s adverse credibility determination was based

11   on inconsistencies between Zhou’s testimony and her statements

12   at an asylum interview.     Zhou challenges the reliability of

13   this interview.     An adverse credibility determination may be

14   supported by the record of an asylum interview if the record

15   contains a “meaningful, clear, and reliable summary of the

16   statements made by [the applicant] at the interview.”    Diallo

17   v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006); see also 8 U.S.C.

18   § 1158(b)(1)(B)(iii).      Here, the asylum interview summary

19   recorded the questions and answers, and so the IJ was justified

20   in relying on it.    Diallo, 445 F.3d at 632.   Zhou also argues

21   that her nervousness rendered her interview unreliable.      We
                                     3
1    have rejected “the notion that a petitioner’s claim that she

2    was nervous and distracted during the credible fear interview

3    automatically undermines or negates its reliability as a source

4    of her statements.”    Ming Zhang v. Holder, 585 F.3d 715, 725

5    (2d Cir. 2009); cf. Diallo, 445 F.3d at 631-32 (discussing lower

6    scrutiny given to asylum interviews).             A claim of feeling

7    nervous, without more, does not make Zhou’s asylum interview

8    unreliable.

9          As the record of Zhou’s asylum interview is reliable, the

10   agency was entitled to consider inconsistencies between the

11   interview and Zhou’s testimony.          At her interview, Zhou stated

12   that, after her husband left China, she removed her IUD without

13   permission.   At her merits hearing, by contrast, she testified

14   that family planning officials “agreed to remove the IUD.”

15   Zhou’s   explanation   for   this       inconsistency,   that   she   was

16   nervous, did not actually explain why she was unable to provide

17   accurate answers to the straightforward questions posed to her

18   at the interview, and the agency was not compelled to credit

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

20         Another inconsistency involved Zhou’s hearing testimony

21   that she had requested sick leave “[o]nly [a] few times” during
                                         4
1    the five or six months during her second pregnancy, and her

2    statement   at     her   asylum   interview   confirming   that    she

3    “reappl[ied] for sick leave every week.”          The agency was not

4    compelled to credit Zhou’s explanation for this discrepancy:

5    that she forgot what she had said previously but was testifying

 6   accurately.      The record also supports the agency’s observation

 7   that Zhou and her husband’s testimony about Zhou’s sick leave

 8   during her second pregnancy was “not particularly detailed.”

9        The IJ also cited an inconsistency between Zhou’s testimony

10   that she received a reduced salary while on sick leave and her

11   statement at her asylum interview that she received no salary.

12   Zhou was not given an opportunity to address this inconsistency

13   at her hearing.     “[A]n IJ may not rest an adverse credibility

14   finding     on     non-dramatic    putative       contradictions   or

15   incongruities in an alien’s narrative without first giving the

16   applicant a chance to reconcile the testimony.”          Ming Shi Xue

17   v. B.I.A., 439 F.3d 111, 125 (2d Cir. 2006).

18       Nonetheless, as the BIA determined, the totality of the

19   circumstances      outlined   above    supports   the   IJ’s   adverse

20   credibility determination.         Xiu Xia Lin, 534 F.3d at 167.

21   Given that determination, the agency properly considered Zhou’s
                                        5
1    lack of corroborating evidence.       Biao Yang v. Gonzales, 496

2    F.3d 268, 273 (2d Cir. 2007).       Zhou argues that the agency’s

3    corroboration determination was “conclusory” because specific

4    evidence was not discussed in the agency’s decisions.   However,

5    the agency is not required to “expressly parse or refute on the

6    record each individual argument or piece of evidence offered

7    by the petitioner.”   Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87

8    (2d Cir. 2007) (internal quotation marks omitted).          Zhou

9    submitted country reports, birth certificates, a marriage

10   certificate, a household register, family photos, a passport,

11   and a letter from a friend that discussed Zhou’s forced

12   induction but not Zhou’s second pregnancy.         None of these

13   documents rehabilitate Zhou’s testimony regarding her second

14   pregnancy.

15       In light of the inconsistencies discussed above and the

16   lack of corroboration, the “totality of the circumstances”

17   supports the IJ’s adverse credibility determination.      Xiu Xia

18   Lin, 534 F.3d at 167.    This finding was sufficient to deny

19   asylum, withholding of removal, and CAT relief, as all three

20   forms of relief relied on the same factual predicate.    See Paul


                                     6
1    v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang

2    v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

3        For the foregoing reasons, the petition for review is

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

5    that the Court previously granted in this petition is VACATED,

6    and any pending motion for a stay of removal in this petition

7    is DISMISSED as moot.    Any pending request for oral argument

8    in this petition is DENIED in accordance with Federal Rule of

9    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

10   34.2(c).

11                                 FOR THE COURT:
12                                 Catherine O=Hagan Wolfe, Clerk




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