    10-2626-ag
    Zhu v. Holder
                                                                                  BIA
                                                                           Schoppert, IJ
                                                                          A099 686 818
                         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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Daniel Patrick Moynihan United
    States Courthouse, 500 Pearl Street, in the City of New York, on
    the 22nd day of February, two thousand twelve.

    PRESENT:
                    JON O. NEWMAN,
                    ROBERT A. KATZMANN,
                    SUSAN L. CARNEY,
                         Circuit Judges.
    _____________________________________

    PENG FEI ZHU, AKA ZHI YANG ZHOU,
             Petitioner,

                    v.                                     10-2626-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED
    STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Eric Y. Zheng, New York, N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Thomas B. Fatouros, Senior
                                  Litigation Counsel; Annette M.
                                  Wietecha, Office of Immigration
                                  Litigation, United States Department
                                  of Justice, Washington, D.C.
    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.

    Peng Fei Zhu, a native and citizen of China, seeks

review of a June 15, 2010 decision of the BIA affirming the

July 22, 2008 decision of Immigration Judge (“IJ”) Douglas

B. Schoppert, which denied his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).     In re Peng Fei Zhu, No. A099 686

818 (B.I.A. June 15, 2010), aff’g No. A099 686 818 (Immig.

Ct. N.Y. City July 22, 2008).       We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

    Under the circumstances of this case, we review both

the IJ’s and BIA’s decisions.       Dong Gao v. BIA, 482 F.3d

122, 126 (2d Cir. 2007); Zaman v. Mukasey, 514 F.3d 233, 237

(2d Cir. 2008).     The applicable standards of review are

well-established.     See 8 U.S.C. § 1252(b)(4)(B); see also

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

    As an initial matter, because Zhu failed to challenge

the IJ’s denial of CAT relief in his appeal to the BIA, we


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are without jurisdiction to consider his challenge to the

denial of that relief.    8 U.S.C. § 1252(d)(1); Karaj v.

Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).      Accordingly, we

address only the agency’s denial of asylum and withholding

of removal on credibility grounds.

       For asylum applications such as Zhu’s, governed by the

amendments made to the Immigration and Nationality Act by

the REAL ID Act of 2005, the agency may, considering the

totality of the circumstances, base a credibility finding on

an asylum applicant’s “demeanor, candor, or responsiveness,”

the plausibility of his or her account, and inconsistencies

in his or her statements, without regard to whether they go

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

§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

167 (2d Cir. 2008) (“For cases filed after May 11, 2005 . .

. an IJ may rely on any inconsistency or omission in making

an adverse credibility determination as long as the

‘totality of the circumstances’ establishes that an asylum

applicant is not credible.”).       We will “defer . . . to an

IJ’s credibility determination unless, from the totality of

the circumstances, it is plain that no reasonable fact-

finder could make” such a ruling.      Xiu Xia Lin, 534 F.3d at

167.

                                3
    In this case, substantial evidence supports the

agency’s adverse credibility determination.   In finding Zhu

not credible, the agency reasonably relied on an

inconsistency between documentary evidence and the testimony

of Zhu and his witness.   As the agency found, Zhu submitted

a letter, written by his witness Reverend Tsang, stating

that Zhu had been attending his church in the United States

since March 2005, which conflicted with Tsang’s testimony

that Zhu had been attending his church since March 2007 and

Zhu’s testimony that he did not enter the United States

until October 2005.   A reasonable fact-finder would not be

compelled to credit Zhu’s explanation that Tsang made an

error given Tsang’s testimony that Zhu provided him with the

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

(2d Cir. 2005) (holding that the agency need not credit an

applicant’s explanations for inconsistent testimony unless

those explanations would compel a reasonable fact-finder to

do so).

    The agency also reasonably relied on an implausibility

finding given that Zhu testified that he traveled to

Malaysia to seek asylum and to obtain a Haitian visa, but

returned to China three or four days later, having been


                              4
unable to obtain either relief, where he almost immediately

obtained a Haitian visa.     While Zhu submitted two letters,

one from his father and one from a friend in China, both of

which described the events leading to Zhu’s departure from

China and travel to the United States, neither letter made

reference to Zhu’s trip to Malaysia and thus the

implausibility finding is sufficiently grounded in the

record.    See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d

Cir. 2007) (“[S]peculation that inheres in inference is not

‘bald’ if the inference is made available to the factfinder

by record facts, even a single fact, viewed in the light of

common sense and ordinary experience.”).

    In addition to the inconsistency and implausibility

findings, the agency reasonably relied on Zhu’s failure to

corroborate his claims in finding him not credible.        See

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

curiam).   Zhu testified that he first formed his intent to

leave China in May 2005, after he was detained and beaten,

but explained he had obtained a Chinese passport in January

2005 because his parents thought about sending him abroad to

further his education.     His father’s letter, however,

indicated that his father and mother did not decide to send


                                5
him abroad until July 2005, and that decision was made to

protect him, not for educational reasons.    Because Zhu could

have obtained a letter from his father to corroborate this

point, the agency did not err in finding that he should have

submitted additional evidence.     See Biao Yang, 496 F.3d at

273 (“An applicant’s failure to corroborate his or her

testimony may bear on credibility, because the absence of

corroboration in general makes an applicant unable to

rehabilitate testimony that has already been called into

question.”).

    The IJ properly relied on the cumulative effect of the

inconsistency, implausibility, and lack of corroboration in

finding Zhu not credible.    See 8 U.S.C. § 1158(b)(1)(B)(iii)

(an IJ may base a credibility determination on “the totality

of the circumstances, and all relevant factors”); see also

Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107

(2d Cir. 2006).    Moreover, a reasonable fact-finder would

not be compelled to accept Zhu’s explanation for the

inconsistency.    The totality of the circumstances therefore

supports the agency’s adverse credibility determination, and

we defer to that finding.    See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.     Thus,


                               6
we find no error in the agency’s denial of asylum and

withholding of removal on credibility grounds.   See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

    For the foregoing reasons, the 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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