     15-3721
     Zhang v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 442 849

                              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   10th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            DEBRA ANN LIVINGSTON,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   SHAOQIANG ZHANG,
14            Petitioner,
15
16                       v.                                                 15-3721
17                                                                          NAC
18   JEFFERSON B. SESSIONS, III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                              Yongbing Zhang, Law Offices
24                                                of Yongbing Zhang, Chicago,
25                                                IL.
26
27   FOR RESPONDENT:                              Benjamin C. Mizer, Principal
28                                                Deputy Assistant Attorney
29                                                General; Linda S. Wernery,
30                                                Assistant Director; William
31                                                C. Minick, Trial Attorney;
1                                        Office of Immigration
2                                        Litigation, U.S. Department
3                                        of Justice, Washington, DC.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9        Petitioner Shaoqiang Zhang, a native and citizen of China,

10   seeks review of an October 20, 2015, decision of the BIA

11   affirming a May 2, 2014, decision of an Immigration Judge (“IJ”)

12   denying Zhang’s application for asylum, withholding of removal,

13   and relief under the Convention Against Torture (“CAT”).      In

14   re Shaoqiang Zhang, No. A205 442 849 (B.I.A. Oct. 20, 2015),

15   aff’g No. A205 442 849 (Immig. Ct. N.Y. City May 2, 2014).    We

16   assume the parties’ familiarity with the underlying facts and

17   procedural history in this case.

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

19   the BIA’s and IJ’s decisions.    Guan v. Gonzales, 432 F.3d 391,

20   394 (2d Cir. 2005).   The applicable standards of review are well

21   established.   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

22   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

23       For asylum applications like Zhang’s, governed by the REAL

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

25   circumstances,” base a credibility finding on an asylum

                                     2
1    applicant’s “demeanor, candor, or responsiveness,” the

2    plausibility of his account, and inconsistencies in his

3    statements, “without regard to whether” those inconsistencies

4    go “to the heart of the applicant’s claim.”          8 U.S.C.

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

6    “We defer . . . to an IJ’s credibility determination unless,

7    from the totality of the circumstances, it is plain that no

8    reasonable fact-finder could make such an adverse credibility

9    ruling.”   Xiu Xia Lin, 534 F.3d at 167.         Further, “[a]

10   petitioner must do more than offer a plausible explanation for

11   his inconsistent statements to secure relief; he must

12   demonstrate that a reasonable fact-finder would be compelled

13   to credit his testimony.”        Majidi v. Gonzales, 430 F.3d 77,

14   80-81 (2d Cir. 2005) (internal quotation marks omitted).          For

15   the reasons that follow, we conclude that substantial evidence

16   supports the agency’s finding that Zhang was not credible.

17       First,   the     agency    reasonably   based   the    credibility

18   determination   on    the     omissions   from   Zhang’s   application

19   concerning his guarantee statement and reporting requirement.

20   Xiu Xia Lin, 534 F.3d at 166-68; see also id. at 166 n.3 (“An

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

22   for credibility purposes).        Zhang testified that he signed a

23   guarantee statement in which he promised to report to the police

                                         3
1    station, that he reported to the police once a month for eight

2    months, and that the police continue to threaten his family

3    members for his failure to report.                  Zhang’s application,

4    however, omitted any reference to the guarantee statement, his

5    reporting requirement, or the police’s threats.              The IJ was not

6    compelled to credit Zhang’s explanation for these omissions.

7    See Majidi, 430 F.3d at 80.

8           Second,    the      agency   reasonably   based    the    credibility

9    determination on the omission from Zhang’s wife’s letters that

10   the police had threatened her for Zhang’s failure to report.

11   See Xiu Xia Lin, 534 F.3d at 167 (explaining that omission of

12   fact    from    family      member’s   letter    “could   have    reasonably

13   convinced      the    IJ    that    [the]   story    of   persecution   was

14   fabricated”).        Zhang testified that the people who called his

15   wife identified themselves as being from the “South City Public

16   Security       Bureau.”        Administrative       Record   (“A.R.”)    91.

17   However, Zhang’s wife’s first letter makes no mention of

18   threatening calls, and her second letter states that the calls

19   were from “stranger[s].”            A.R. 107.    The IJ was not required

20   to accept Zhang’s explanation that his wife referred to the

21   callers as strangers because she did not know them personally.

22   See Majidi, 430 F.3d at 80.



                                            4
1        Third, the agency reasonably based the credibility finding

2    on the omission from Zhang’s mother’s letter that the family

3    had been threatened by the police due to Zhang’s failure to

4    report.    Xiu Xia Lin, 534 F.3d at 167.   Zhang’s mother’s letter

5    does not mention threats; however, Zhang testified that the

6    police had made threatening calls to his “family members.”

7    A.R. 78.   Zhang does not challenge the agency’s reliance on this

8    omission on appeal.

9        Finally,     the   adverse   credibility   determination   was

10   properly based on the inconsistency between Zhang’s testimony

11   and evidence about whether Zheng, or anyone in his family, had

12   kept in touch with his friend who owned the Falun Gong books

13   found in Zhang’s home.     See Xiu Xia Lin, 534 F.3d at 163-64.

14   Zhang testified that neither he nor his family has had recent

15   contact with the friend.      However, Zhang submitted a letter

16   from the friend in support of his application.    When confronted

17   with this discrepancy, Zhang testified that his wife obtained

18   the letter through the friend’s family.        The IJ reasonably

19   found Zhang’s testimony and supporting evidence inconsistent,

20   and he was not compelled to accept Zhang’s corresponding

21   explanation.    See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.

22   2007) (“Decisions as to . . . which of competing inferences to

23   draw are entirely within the province of the trier of fact.”

                                      5
1    (alteration in original) (quoting Palazzo ex rel Delmage v.

2    Corio, 232 F.3d 38, 44 (2d Cir. 2000))); Majidi, 430 F.3d at

3    80.

4          Given the foregoing omission and inconsistency findings,

5    the   totality   of   the   circumstances   supports   the   adverse

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

7    That determination is dispositive of Zhang’s claims for asylum,

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

9    are based on the same factual predicate.     See Paul v. Gonzales,

10   444 F.3d 148, 156-57 (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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