         10-1915-ag
         Zhu v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A077 997 825


                          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 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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 28th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                JOSEPH M. MCLAUGHLIN,
 8                GUIDO CALABRESI,
 9                RICHARD C. WESLEY,
10                        Circuit Judges.
11       _____________________________________
12
13       LI PING ZHU
14                Petitioner,
15
16                       v.                                     10-1915-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Li Ping Zhu, pro se, Bayside, NY.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; John S. Hogan, Senior
27                                     Litigation Counsel; Laura Maroldy,
28                                     Trial Attorney, Office of
 1                            Immigration Litigation, United
 2                            States Department of Justice,
 3                            Washington, D.C.
 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

 8   is DENIED.

 9       Petitioner Li Ping Zhu, a native and citizen of the

10   People’s Republic of China, seeks review of an April 19,

11   2010, order of the BIA, affirming the May 12, 2008, decision

12   of Immigration Judge (“IJ”) Gabriel C. Videla, which denied

13   her application for asylum, withholding of removal, and

14   relief under the Convention Against Torture (“CAT”).      In re

15   Li Ping Zhu, No. A077 997 825 (B.I.A. Apr. 19, 2010), aff’g

16   Nos. A077 997 825 (Immig. Ct. N.Y. City May 12, 2008).     We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   the decision of the IJ as supplemented by the BIA.     See Xian

21   Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 293, (2d

22   Cir. 2006).    The applicable standards of review are well-

23   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

24   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

25       In pre-REAL ID Act cases, such as this one,

                                    2
 1   inconsistencies that form the basis of an adverse

 2   credibility determination    must “bear a legitimate nexus” to

 3   the applicant’s claim of persecution and be “substantial”

 4   when measured against the record as a whole.     Secaida-

 5   Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003).        On the

 6   other hand, an IJ is entitled to rely on the cumulative

 7   effect of even minor inconsistencies.     See Tu Lin v.

 8   Gonzales, 446 F.3d 395, 402 (2d Cir. 2006); Liang Chen v.

 9   U.S. Attorney Gen., 454 F.3d 103, 106-107 (2d Cir. 2006).

10   Here, because the IJ identified numerous inconsistencies in

11   Zhu’s testimony and evidence, substantial evidence supports

12   the adverse credibility determination.     See Tu Lin, 446 F.3d

13   at 402.

14       First, the IJ noted that although Zhu testified that

15   after she fled China government officials detained her

16   husband for an hour, this assertion was omitted from her

17   asylum application.   Contrary to Zhu’s argument that the IJ

18   erred by conflating omissions with inconsistencies, we have

19   recognized that both types of discrepancies may support an

20   adverse credibility determination and are in this context

21   “functionally equivalent.”     Xiu Xia Lin v. Mukasey, 534 F.3d

22   162, 166 n.3 (2d Cir. 2008).    The IJ considered Zhu’s


                                     3
 1   explanation that she did not think she had to mention this

 2   fact in her asylum application, and reasonably found it

 3   insufficient.     See Majidi v. Gonzales, 430 F.3d 77, 80-81

 4   (2d Cir. 2005); see also Tu Lin, 446 F.3d at 402.

 5       The adverse credibility determination is further

 6   supported by Zhu’s inconsistent testimony regarding her

 7   husband’s detention.     Zhu initially testified that her

 8   husband had telephoned her to tell her about his detention,

 9   but later stated that he had not mentioned his detention in

10   his letters because he did not want to cause her worry. Zhu

11   then said that her son, not her husband, had told her of the

12   detention.     Furthermore, Zhu initially testified that she

13   never went to the American Embassy to get a visa. But when

14   confronted with evidence reflecting that she had applied for

15   a visa three times, she conceded that she had in fact

16   applied.     Although Zhu explained that she had understood the

17   original question to mean while she was in the United

18   States, the record does not reflect any ambiguity in the

19   original question.     Thus, the IJ was entitled to disregard

20   her explanation.     See Majidi, 430 F.3d at 80-81.

21       Zhu also argues that the IJ erred in failing to

22   consider withholding of removal separately, because that


                                     4
 1   claim was also based on her fear of harm due to her illegal

 2   departure.   Because Zhu failed to raise any claim based on

 3   her illegal departure before the BIA, however, we decline to

 4   address this unexhausted argument.    See Lin Zhong v. U.S.

 5   Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).

 6   Contrary to Zhu’s contention, the IJ addressed her request

 7   for CAT relief, and reasonably concluded that Zhu failed to

 8   demonstrate that she was more likely than not to face

 9   torture in China.   See Mu Xiang Lin v. U.S. Dep’t of

10   Justice, 432 F.3d 156, 160 (2d Cir. 2005).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21




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