         13-826
         Zhou v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                                A94 793 308


                              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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of February, two thousand sixteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       XIAN ZHOU,
14                Petitioner,
15
16                       v.                                     13-826
17                                                              NAC
18
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.1
22       _____________________________________
23


                 1
               Loretta E. Lynch is automatically substituted as the
         respondent in this case pursuant to Federal Rule of
         Appellate Procedure 43(c)(2).
 1   FOR PETITIONER:           Keith S. Barnett, New York, N.Y.
 2

 3        UPON DUE CONSIDERATION of this petition for review of a

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

 5   ORDERED, ADJUDGED, AND DECREED that the petition for review

 6   is DISMISSED in part and DENIED in part.

 7       Xian Zhou, a native and citizen of China, seeks review

 8   of a February 12, 2013, decision of the BIA affirming the

 9   November 22, 2010, decision of an Immigration Judge (“IJ”)

10   denying Zhou’s application for asylum, withholding of

11   removal, and relief under the Convention Against Torture

12   (“CAT”).     In re Xian Zhou, No. A094 793 308 (B.I.A. Feb. 12,

13   2013), aff’g No. A094 793 308 (Immig. Ct. N.Y. City Nov. 22,

14   2010).     We assume the parties’ familiarity with the

15   underlying facts and procedural history of this case.

16       We have reviewed both the BIA’s and IJ’s decisions.

17   See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.

18   2005).     The applicable standards of review are well-

19   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

20   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

21       Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction

22   to review the agency’s determination that Zhou’s asylum

23   application is untimely.     See 8 U.S.C. § 1158(a)(2)(B).

                                     2
 1   Although we retain jurisdiction to review “constitutional

 2   claims or questions of law,” Zhou merely disputes the

 3   agency’s fact finding.   8 U.S.C. § 1252(a)(2)(D).       We

 4   dismiss his petition as to asylum for lack of jurisdiction.

 5   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 333

 6   (2d Cir. 2006).

 7         We deny the petition as to withholding of removal and

 8   CAT relief.   For asylum applications, like Zhou’s, governed

 9   by the REAL ID Act, the agency may, “[c]onsidering the

10   totality of the circumstances,” base a credibility finding

11   on inconsistencies in the applicant’s statements and other

12   record evidence without regard to whether they go “to the

13   heart of the applicant’s claim,” and the “inherent

14   plausibility” of the applicant’s account.     8 U.S.C.

15   §§ 1158(b)(1)(B)(iii), 1231; Xiu Xia Lin, 534 F.3d at 163-

16   64.   Substantial evidence supports the agency’s adverse

17   credibility determination.

18         In finding Zhou not credible, the agency reasonably

19   relied on the following inconsistencies and

20   implausibilities.   First, the record shows that Zhou’s

21   testimony that he saw his witness, Yue Yan Liu, at church

22   the day before his merits hearing was refuted by Liu, who


                                   3
 1   testified that she had not attended church for three or four

 2   weeks.   This inconsistency called into question Zhou’s

 3   assertion that he was a practicing Christian.     The record

 4   also supports the agency’s finding that it was implausible

 5   that Zhou was able to leave China--without incident and

 6   using his own passport--at a time when Chinese authorities

 7   were looking for him, particularly as he was unable to

 8   answer questions about when he obtained his passport.     See

 9   Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009)

10   (declining to disturb an implausibility finding where it is

11   “tethered to the record evidence, and there is nothing else

12   in the record from which a firm conviction of error could

13   properly be derived”).

14       The second implausibility finding is also supported by

15   the record.     Zhou testified that both pastors of his

16   American church were unable to attend his hearing because

17   they were both preparing sermons to deliver at 1:30 p.m.

18   that day.     Zhou’s explanation for their inability to testify

19   at 8:30 a.m.–-because they were both preparing sermons-–was

20   not one the agency was compelled to accept.     See Majidi v.

21   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

22



                                     4
 1          Zhou’s lack of corroboration provided further support

 2   to the adverse credibility determination.     “An applicant’s

 3   failure to corroborate . . . testimony may bear on

 4   credibility, because the absence of corroboration in general

 5   makes an applicant unable to rehabilitate testimony that has

 6   . . . been called into question.”    See Biao Yang v.

 7   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).     The agency’s

 8   corroboration determination centered on Zhou’s testimony

 9   that Chinese authorities had visited his mother to question

10   her about his whereabouts, and pushed his mother to the

11   ground on one occasion.    Comparing his mother’s letter to

12   this testimony, the agency found it significant that the

13   letter did not mention these incidents even though it had

14   been prepared to support Zhou’s application.     The agency

15   properly considered this omission in making its adverse

16   credibility determination.    Xiu Xia Lin, 534 F.3d at 166

17   n.3.

18          Nor did the IJ err in finding that Zhou could have

19   provided letters from his father and brother.     The IJ was

20   not required to accept Zhou’s explanation that his father

21   did not graduate from elementary school, his mother could

22   not help his father write a letter, and his brother had not


                                    5
 1   been caught by authorities and lived with his parents.

 2   Zhou’s explanation was, in essence, non-responsive; he did

 3   not actually explain why his mother could not help his

 4   father or why his brother could not write a letter.      See

 5   Majidi, 430 F.3d at 80-81.

 6       Finally, the IJ’s isolated comment that Zhou seemed to

 7   have “selective memory loss” because he could not recall

 8   certain events, did not demonstrate bias.    Instead, when

 9   read in context, the comment seems to distinguish between

10   Zhou’s detailed testimony regarding some aspects of his

11   claim, and the complete lack of information about others.

12       For the foregoing reasons, the petition for review is

13   DISMISSED, in part, and DENIED, in part.    As we have

14   completed our review, the pending motion for a stay of

15   removal in this petition is DISMISSED as moot.

16                                FOR THE COURT:
17                                Catherine O’Hagan Wolfe, Clerk
18
19




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