         10-4977-ag
         Zhang v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A089 022 957
                            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 18th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                    Circuit Judges.
11       _____________________________________
12
13       ZHENWEN ZHANG
14                Petitioner,
15
16                         v.                                   10-4977-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Xin Miao, Flushing, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; David V. Bernal, Assistant
27                                     Director; Jennifer Paisner Williams,
28                                     Senior Litigation Counsel, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 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

 4   is DISMISSED in part and DENIED in part.

 5       Petitioner Zhenwen Zhang (“Zhang”), a native and

 6   citizen of the People’s Republic of China, seeks review of a

 7   November 23, 2010, order of the BIA, affirming the December

 8   11, 2008, decision of Immigration Judge (“IJ”) Steven R.

 9   Abrams, which pretermitted as untimely her application for

10   asylum, and denied withholding of removal and relief under

11   the Convention Against Torture (“CAT”).    In re Zhenwen

12   Zhang, No. A089 022 957 (B.I.A. Nov. 23, 2010), aff’g No.

13   A089 022 957 (Immig. Ct. N.Y. City Dec. 11, 2008).     We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       Under the circumstances of this case, we have reviewed

17   both the IJ’s and the BIA’s opinions “for the sake of

18   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

19   2008) (per curiam) (internal quotation marks omitted).       The

20   applicable standards of review are well-established.        See 8

21   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

22   513 (2d Cir. 2009).

23


                                   2
 1   I.   Asylum

 2        In pretermitting Zhang’s asylum application as

 3   untimely, the agency found that she failed to present clear

 4   and convincing evidence that the application was filed

 5   within one year of her arrival in the United States.     See

 6   8 U.S.C. § 1158(a)(2)(B).    Zhang’s challenges to the

 7   agency’s finding, though formulated in terms of a challenge

 8   to the IJ’s application of an improper standard,

 9   “essentially dispute[] the correctness of [the] IJ’s fact-

10   finding or the wisdom of his exercise of discretion and

11   raise[] neither a constitutional claim nor a question of

12   law.”   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

13   329 (2d Cir. 2006).   Because we lack jurisdiction to review

14   Zhang’s challenges to the IJ’s fact-finding, we dismiss her

15   petition for review as to asylum.    See id.

16   II. Withholding of Removal

17        For applications, such as this one, governed by the

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

19   totality of the circumstances, base a credibility finding on

20   an asylum applicant’s demeanor, the plausibility of his

21   account, and inconsistencies in his statements, without

22   regard to whether they go “to the heart of the applicant’s


                                    3
 1   claim.”    8 U.S.C. § 1158(b)(1)(B)(iii); see also Matter of

 2   J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).       Analyzed under

 3   the REAL ID Act, the agency’s adverse credibility

 4   determination is supported by substantial evidence.

 5       In finding Zhang not credible, the agency reasonably

 6   relied on the IJ’s finding that she lied about when she

 7   initially obtained the document entitled “Yanji City Public

 8   Security Bureau The Notice for Prisoner’s Family Member,”

 9   (hereinafter “Notice”).    See Xiu Xia Lin v. Mukasey, 534

10   F.3d 162, 167 (2d Cir. 2008).       During her hearing, Zhang

11   testified that she had never seen the Notice before her

12   sister found it in October 2008 and sent it to her from

13   China.    As the agency noted, however, this statement was

14   untrue, as Zhang had submitted the Notice together with her

15   original asylum application in September 2007.       Contrary to

16   Zhang’s argument that she was not given an opportunity to

17   explain herself, the IJ asked her for an explanation, to

18   which she replied “I don’t know.”       Zhang further argues that

19   the agency erred in relying on this inconsistency to find

20   her not credible because the date of her receipt was a

21   “collateral issue.”    Under the REAL ID Act, however, the IJ

22   was entitled to rely on “any inaccuracies or falsehoods” in


                                     4
 1   Zhang’s testimony “without regard to whether [the]

 2   inconsistency, inaccuracy, or falsehood [went] to the heart

 3   of [her] claim.”   8 U.S.C. § 1158(b)(1)(B)(iii).

 4       Having found Zhang’s testimony not credible, the agency

 5   reasonably noted that her failure to provide corroboration

 6   of her claim further undermined her credibility.     See Biao

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

 8   curiam); Maladho Djehe Diallo v. Gonzales, 445 F.3d 624,

 9   633-34 (2d Cir. 2006).   The IJ noted that Zhang failed to

10   provide corroboration of her account from her relatives in

11   China or any documentation verifying the employment from

12   which her claim arose.   Although Zhang argues that it would

13   have been dangerous for her relatives to send documents

14   which could have been intercepted by the Chinese

15   authorities, the IJ considered this explanation and did not

16   err in finding it insufficient, particularly in light of the

17   fact that her relatives had been able to send her other

18   documents.   See Biao Yang, 496 F.3d at 273; Majidi v.

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

20   the agency need not credit an applicant’s explanations

21   unless those explanations would compel a reasonable

22   factfinder to do so).

23
                                   5
 1       Ultimately, because a reasonable fact-finder would not

 2   be compelled to conclude to the contrary, the IJ’s adverse

 3   credibility determination was supported by substantial

 4   evidence.     See Xian Tuan Ye v. Dep’t of Homeland Sec., 446

 5   F.3d 289, 294 (2d Cir. 2006) (per curiam).    Finally,

 6   contrary to Zhang’s argument, the agency did not err in

 7   failing to give independent consideration to her request for

 8   CAT relief, because her CAT claim was based on the same

 9   factual predicate as her request for asylum and withholding

10   of removal.     See Xue Hong Yang v. U.S. Dep’t of Justice, 426

11   F.3d 520, 523 (2d Cir. 2005).

12       For the foregoing reasons, the petition for review is

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

14   our review, any stay of removal that the Court previously

15   granted in this petition is VACATED, and any pending motion

16   for a stay of removal in this petition is DISMISSED as moot.

17   Any pending request for oral argument in this petition is

18   DENIED in accordance with Federal Rule of Appellate

19   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22
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