    17-829
    Zhang v. Sessions
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A200 184 295




                             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
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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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 18th day of October, two thousand eighteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             RALPH K. WINTER,
             RICHARD C. WESLEY,
                  Circuit Judges.
    _____________________________________

    ZHI LIN ZHANG,
             Petitioner,

                        v.                                       17-829
                                                                 NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                       Adedayo O. Idowu, New York, NY.

    FOR RESPONDENT:                       Chad A. Readler, Acting
                                          Assistant Attorney General; Carl
                                          McIntyre, Assistant Director;
                                          Robert D. Tennyson, Trial
                              Attorney, Office of Immigration
                              Litigation, United States
                              Department of Justice,
                              Washington, DC.

    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Zhi Lin Zhang, a native and citizen of the

People’s Republic of China, seeks review of a March 8, 2017,

decision of the BIA affirming a July 14, 2016, decision of an

Immigration Judge (“IJ”) denying Zhang’s application for

asylum,   withholding   of   removal,   and   relief   under   the

Convention Against Torture (“CAT”). In re Zhi Lin Zhang, No.

A200 184 295 (B.I.A. Mar. 8, 2017), aff’g No. A200 184 295

(Immig. Ct. N.Y. City July 14, 2016). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s decisions.      Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable

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

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



                                2
66 (2d Cir. 2008); Yanqin Weng v. Holder, 562 F.3d 510, 513

(2d Cir. 2009).

I.   Past Persecution

     The agency found that Zhang was not credible regarding

his allegations of past harm. In determining credibility,

the agency may base a credibility finding on

inconsistencies in an applicant’s or his witness’s

statements. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia

Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s

credibility determination unless . . . it is plain that no

reasonable fact-finder could make such an adverse

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

the IJ’s adverse credibility finding is based on specific

examples . . . of inconsistent statements or contradictory

evidence, a reviewing court will generally not be able to

conclude that a reasonable adjudicator was compelled to

find otherwise.” Id. at 166 (internal quotation marks

omitted).

     Here, the IJ’s finding is based on several “specific

examples” of inconsistent statements and contradictory

evidence.




                               3
    First, the IJ identified an inconsistency between

Zhang’s testimony and his application concerning the number

of times he was interrogated while detained. 8 U.S.C.

§ 1158(b)(1)(B)(iii). Zhang’s application reported daily

interrogations during his nearly month-long detention, but

he testified that he was interrogated only three times. The

IJ was not required to credit Zhang’s explanation of

translation error in his application because, among other

things, Zhang declined to submit a Chinese language version

of the statement. Majidi v. Gonzales, 430 F.3d 77, 80 (2d

Cir. 2005) (“A petitioner must do more than offer a

plausible explanation for his inconsistent statements to

secure relief; he must demonstrate that a reasonable fact-

finder would be compelled to credit his testimony.”

(internal quotation marks omitted)).

    Second, the IJ identified an inconsistency between

Zhang’s testimony and his friend’s letter about the

physical harm Zhang suffered while detained. 8 U.S.C.

§ 1158(b)(1)(B)(iii). The IJ was not compelled to accept

Zhang’s explanation for the inconsistency — that his friend

saw swelling on his face after his release from detention

and assumed that his physical mistreatment had been severe


                             4
— because Zhang testified only to being slapped on the

third day of a month-long detention. Majidi, 430 F.3d at

80.

      Third, the IJ identified an inconsistency between Zhang’s

testimony and his asylum interview about whether he was kicked

during detention.1    Diallo v. Gonzales, 445 F.3d 624, 631-32

(2d   Cir.   2006)   (observing   that   an   adverse   credibility

determination can be based on discrepancies arising from an

asylum interview and that, unlike border interviews, asylum

interviews “do not call for special scrutiny”). Zhang stated

during his asylum interview that the police kicked him in

detention, but he testified that he was only slapped.2 Zhang

did not merely omit being kicked from his testimony, as he

argues on appeal, but he specifically testified that he was

only slapped, which is an inconsistent description of the

alleged harm. App. 75.

      Given the foregoing inconsistencies, this Court is “not

. . . able to conclude that a reasonable adjudicator was

compelled to find” Zhang credible. Xiu Xia Lin, 534 F.3d at

166. The agency therefore did not err in rejecting Zhang’s

past persecution claim on credibility grounds.


1 Because the BIA did not reject this finding, it remains part of the
agency decision under review. See Yun-Zui Guan, 432 F.3d at 394.
                                  5
II. Future Persecution

    The agency also determined that Zhang failed to meet

his burden for asylum based on his religious activities in

the United States. Absent past persecution, an applicant

may establish eligibility for asylum by demonstrating an

independent well-founded fear of future persecution, which

“is a subjective fear that is objectively reasonable.” Dong

Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir. 2009)

(internal quotation marks omitted); see 8 U.S.C. §

1101(a)(42); 8 C.F.R. § 1208.13(b)(2); see also Y.C. v.

Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum

claim, the applicant must show a reasonable possibility of

future persecution.” (internal quotation marks omitted)).

“[I]n order to establish eligibility for relief based

exclusively on activities undertaken after . . . arrival in

the United States, an alien must make some showing that

authorities in his country of nationality are (1) aware of

his activities or (2) likely to become aware of his

activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 138

(2d Cir. 2008).

    Zhang failed to show that Chinese authorities were or

would likely become aware of his activities.   Id.; Jian Xing


                             6
Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the

absence of solid support in the record,” a fear of persecution

is not well founded and “is speculative at best.”).               Zhang

does not challenge the agency’s finding that he failed to

present any independent evidence that Chinese authorities

were or would likely become aware of his religious practice

in the United States.         He instead contends that Chinese

authorities are aware of his underground church activities

based on his past experiences in China.             But, as set forth

above, this Court is not able to conclude that the agency was

compelled to credit Zhang’s testimony. And there was no other

evidence    that   Chinese   authorities    would    likely    discover

Zhang’s    religious     activities.       While    Zhang    refers   to

background evidence and country reports in his brief, he did

not submit any such evidence to the agency.              His argument

that he demonstrated his eligibility for asylum because there

is   a   pattern   and   practice   of   persecution    in    China   of

underground Christians is therefore misplaced. See Jian Xing

Huang, 421 F.3d at 129.      Accordingly, the agency did not err

in denying asylum or in concluding that he necessarily failed

to meet the higher burdens for withholding of removal and CAT

relief. Y.C., 741 F.3d at 335.


                                    7
    For the foregoing reasons, Zhang’s petition for review

is DENIED.   As we have completed our review, the pending

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

moot.

                       FOR THE COURT:
                       Catherine O’Hagan Wolfe, Clerk




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