     16-1687
     Zhao v. Sessions
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A205 043 057

                             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   11th day of April, two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   RUXING ZHAO,
14            Petitioner,
15
16                      v.                                           16-1687
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Aminat Sabak, New York, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; John S.
27                                       Hogan, Assistant Director; Lindsay
28                                       C. Dunn, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
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 Ruxing Zhao, a native and citizen of the

6    People’s Republic of China, seeks review of a May 6, 2016,

7    decision of the BIA, affirming a March 26, 2015, decision of

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

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

10   Against Torture (“CAT”).       In re Ruxing Zhao, No. A205 043 057

11   (B.I.A. May 6, 2016), aff’g No. A205 043 057 (Immig. Ct. N.Y.

12   City Mar. 26, 2015).       We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

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

15   the IJ’s and the BIA’s decisions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).     We     review     the   agency’s   adverse     credibility

18   determination     for   substantial    evidence.        See   8 U.S.C.

19   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

20   (2d Cir. 2008).

21       For asylum applications like Zhao’s, governed by the REAL

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

23   circumstances,” base a credibility finding on an applicant’s
                                        2
1    “demeanor,       candor,    or     responsiveness,”    “the       inherent

2    plausibility of the applicant’s . . . account,” and on

3    inconsistencies in an applicant’s statements and evidence.               8

4    U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 164 n.2.

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

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

7    reasonable fact-finder could make such an adverse credibility

8    ruling.”       Id. at 167.        Substantial evidence supports the

9    adverse credibility determination.

10          The agency reasonably relied on inconsistencies between

11   Zhao’s        testimony     and     evidence.         See     8    U.S.C.

12   § 1158(b)(1)(B)(iii).        The inconsistencies are reflected in

13   the record and provide substantial support for the adverse

14   credibility determination as they concern whether similarly

15   situated individuals were targeted for attending an underground

16   church.    Cf. Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d

17   289,    295    (2d   Cir.   2006)    (concluding   that     “a    material

18   inconsistency” relating to “the very persecution from which

19   [the    applicant]    sought      asylum, . . . afforded    substantial

20   evidence to support the adverse credibility finding.” (internal

21   quotation marks and citation omitted)).         For example, Zhao had

22   difficulty naming individuals in China whom he knew to have been

23   targeted for attending an underground church, despite the fact
                                           3
1    that letters from his father and aunt both recounted their

2    run-ins with Chinese authorities on that basis.       Contrary to

3    Zhao’s argument in his brief that the IJ erred in not confronting

4    him with this discrepancy, the IJ was not required to do so

5    because the inconsistency was “obvious on its face” and

6    concerned the central basis of his fear of persecution.       Ming

7    Shi Xue v. BIA, 439 F.3d 111, 122 n.13, 125 (2d Cir. 2006).

8        The   agency   also   reasonably   found   implausible   Zhao’s

9    testimony that Chinese authorities visited his father’s home

10   to warn his father that Zhao was “subject to [] administrative

11   punishment” yet did not arrest his father for attending an

12   underground church.   See Wensheng Yan v. Mukasey, 509 F.3d 63,

13   66 (2d Cir. 2007) (“[I]n assessing the credibility of an asylum

14   applicant’s testimony, an IJ is entitled to consider whether

15   the applicant’s story is inherently implausible.”).

16       The adverse credibility determination is bolstered by the

17   agency’s demeanor finding.     The agency reasonably found that

18   Zhao’s difficulty remembering names of people he sought to

19   proselytize damaged his credibility.     We defer to that finding,

20   particularly given the evidence of Zhao’s difficulty naming

21   individuals to whom he proselytized, despite having testified

22   that he proselytized to many friends and family members.        See

23   Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005); Tu Lin
                                     4
1    v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (“Evasiveness is,

2    of course, one of the many outward signs a fact-finder may

3    consider in evaluating demeanor and in making an assessment of

4    credibility.”).

5        Nor do we discern error in the agency’s decision to give

6    limited weight to Zhao’s corroborating evidence.   See Y.C. v.

7    Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the

8    agency’s determination of the weight afforded to an alien’s

9    documentary evidence.”).     Zhao’s letters from China were

10   authored by individuals not subject to cross examination, and

11   a church letter from the United States was inconsistent with

12   Chen’s testimony.   Id. (upholding agency’s decision to give

13   little weight to letter from family member in China).   Nor do

14   we discern error in the agency’s conclusion that Zhao’s

15   credibility was further damaged by failing to provide letters

16   from the family and friends to whom he allegedly proselytized.

17   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

18   The agency was not compelled to accept Zhao’s explanation that

19   they were “afraid of writing” letters.    See Majidi, 430 F.3d

20   at 80 (“A petitioner must do more than offer a plausible

21   explanation for his inconsistent statements to secure relief;

22   he must demonstrate that a reasonable fact-finder would be


                                    5
1    compelled to credit his testimony.” (internal quotation marks

2    omitted)).

3           Given the inconsistencies, the implausibility of Zhao’s

4    testimony, the demeanor finding, and the lack of reliable

5    corroboration, the totality of the circumstances supports the

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

7    167.    The adverse credibility determination is dispositive of

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

9    forms of relief are based on the same factual predicate.   Paul

10   v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

11          For the foregoing reasons, the petition for review is

12   DENIED.

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk




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