     15-3316
     Zhang v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 442 970


                              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 seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   YAN LIN ZHANG,
14            Petitioner,
15
16                       v.                                          15-3316
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23
24   FOR PETITIONER:                     Lewis G. Hu, New York, N.Y.
25
26


      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jefferson B. Sessions III is automatically substituted for
     former Attorney General Loretta E. Lynch as Respondent.
 1   FOR RESPONDENT:            Benjamin C. Mizer, Principal Deputy
 2                              Assistant Attorney General; Emily
 3                              Anne Radford, Assistant Director;
 4                              Jesse D. Lorenz, Trial Attorney;
 5                              Christin M. Mitchell, Law Clerk,
 6                              Office of Immigration Litigation,
 7                              United States Department of Justice,
 8                              Washington D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

12   ORDERED, ADJUDGED, AND DECREED that the petition for review is

13   DENIED.

14       Petitioner Yan Lin Zhang, a native and citizen of China,

15   seeks review of a September 29, 2015, decision of the BIA

16   affirming a March 12, 2014, decision of an Immigration Judge

17   (“IJ”) denying Zhang’s application for asylum, withholding of

18   removal, and relief under the Convention Against Torture

19   (“CAT”).   In re Yan Lin Zhang, No. A205 442 970 (B.I.A. Sept.

20   29, 2015), aff’g No. A205 442 970 (Immig. Ct. N.Y. City Mar.

21   12, 2014).    We assume the parties’ familiarity with the

22   underlying facts and procedural history in this case.

23       Under the circumstances of this case, we have reviewed the

24   IJ’s decision as modified by the BIA (i.e., minus the IJ’s

25   pretermission of asylum on which the BIA did not rely).    See

26   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

27   Cir. 2005).    The applicable standards of review are well

                                   2
1    established.         8 U.S.C.      § 1252(b)(4)(B);       Xiu    Xia     Lin   v.

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

3          The governing REAL ID Act credibility standard provides

4    that the agency may, “[c]onsidering the totality of the

5    circumstances,” base a credibility finding on an applicant’s

6    “demeanor, candor, or responsiveness,” the plausibility of her

7    account, and inconsistencies in her statements and other

8    evidence “without regard to whether” those inconsistencies go

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

10   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.                  “[E]ven

11   where an IJ relies on discrepancies or lacunae that, if taken

12   separately, concern matters collateral or ancillary to the

13   claim,   the   cumulative         effect     may   nevertheless    be     deemed

14   consequential by the fact-finder.”                 Tu Lin v. Gonzales, 446

15   F.3d 395, 402 (2d Cir. 2006) (internal quotation marks and

16   citation omitted).          “We defer . . . to an IJ’s credibility

17   determination unless . . . it is plain that no reasonable

18   fact-finder could make such an adverse credibility ruling.”

19   Xiu Xia Lin, 534 F.3d at 167.                Further, “[a] petitioner must

20   do    more   than    offer    a    plausible       explanation     for    h[er]

21   inconsistent        statements      to       secure   relief;     [s]he    must

22   demonstrate that a reasonable fact-finder would be compelled


                                              3
1    to credit h[er] testimony.”       Majidi v. Gonzales, 430 F.3d 77,

2    80 (2d Cir. 2005) (internal quotation marks omitted).         For the

3    following reasons, we conclude that substantial evidence

4    supports    the   agency’s   determination   that    Zhang   was    not

5    credible.

6        First, the credibility determination is supported by the

7    inconsistency between Zhang’s testimony and application about

8    whether she struggled with police.       See Xiu Xia Lin, 534 F.3d

9    at 163-64.    Zhang testified that she did not resist arrest or

10   struggle with police when she was arrested for distributing

11   flyers from her underground church.          Administrative Record

12   (“A.R.”) at 88, 106.     However, she stated in her application

13   that one of the officers “held [her] down.”         Id. at 269.    When

14   confronted with this inconsistency, Zhang stated incorrectly

15   that she had testified that she was “grabbed” and later

16   explained incoherently that she “just remember[ed] at the time

17   he arrested me.”    Id. at 106.    The agency was not compelled to

18   accept these explanations because they did not explain the

19   discrepancy.      See Majidi, 430 F.3d at 80.           The IJ also

20   reasonably found that this was a major inconsistency because

21   it relates to Zhang’s one purported arrest in China.              Zhang

22   asserts for the first time on appeal that this inconsistency


                                       4
1    was the result of a translation error; however, we decline to

2    consider this unexhausted argument.         See Lin Zhong v. U.S.

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

4        Second,     the   agency   reasonably   based   the    credibility

5    determination on the submission of Zhang’s aunt’s written

6    statement and the inconsistencies between that statement and

7    her testimony.    See Xiu Xia Lin, 534 F.3d at 163-64; Siewe v.

8    Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).               Zhang’s aunt

9    attested in her statement that she visited Zhang’s family in

10   China during the 2012 Spring Festival and that, during the

11   visit, she had learned that Zhang was coming to the United

12   States.   A.R. at 220.    Zhang’s aunt testified, however, that

13   she was unaware of any Spring Festival in China and, after

14   several questions, admitted that she was illiterate and that

15   Zhang might have authored the statement herself.               Id. at

16   126-27.   The agency reasonably relied on Zhang’s submission of

17   this false written statement to find her not credible.             See

18   Siewe, 480 F.3d at 170 (providing that an asylum applicant’s

19   presentation of “a single false document or a single instance

20   of false testimony may (if attributable to the petitioner)

21   infect    the   balance   of    the   alien’s   uncorroborated      or




                                       5
1    unauthenticated evidence . . . [and] may also influence the IJ’s

2    assessment of . . . the credibility of the petitioner”).

3          Third,    the    agency   reasonably   based    the   credibility

4    determination on the inconsistencies between Zhang’s and her

5    aunt’s testimony.        See Xiu Xia Lin, 534 F.3d at 163-64.

6    Zhang’s aunt testified inconsistently with Zhang regarding

7    where they had dinner on New Year’s Eve (at Zhang’s house or

8    a restaurant), whether they saw each other only twice or several

9    times in 2012, and where they first saw each other in the United

10   States.   A.R. 103-04, 122, 124-26.       Neither Zhang nor her aunt

11   could explain these inconsistencies, and the agency was not

12   compelled to accept Zhang’s aunt’s explanation that she is

13   elderly and has a poor memory, id. at 104, 125-31.          See Majidi,

14   430 F.3d at 80.       Although these inconsistencies do not relate

15   to the core of Zhang’s claim, the agency was entitled to rely

16   on them in further support of the credibility determination.

17   See Xiu Xia Lin, 534 F.3d at 163-64; Tu Lin, 446 F.3d at 402.

18       Finally, the agency reasonably based the credibility

19   determination     on    inconsistencies      within   Zhang’s   aunt’s

20   testimony about when she learned of Zhang’s arrest.             See Xiu

21   Xia Lin, 534 F.3d at 163-64.      Although Zhang’s aunt’s testimony

22   on this point is somewhat difficult to follow, and she was


                                        6
1    reminded by the IJ to wait for the interpreter to translate the

2    questions prior to answering, A.R. at 126-27, the record

3    supports     the    agency    finding         that    Zhang’s    aunt    testified

4    inconsistently about whether she was told of Zhang’s arrest

5    while in China.       See Siewe, 480 F.3d at 167 (“Where there are

6    two permissible views of the evidence, the fact finder’s choice

7    between them cannot be clearly erroneous.” (internal quotation

8    marks omitted)).       Moreover, even if we were to conclude that

9    this inconsistency finding was erroneous, remand would be

10   futile      because    “the       agency’s      ultimate        ruling—that       the

11   petitioner failed to provide a credible account of past

12   persecution and thus failed to satisfy her burden of proof—is

13   supported by substantial evidence and it is clear that the same

14   decision would be made on remand.”                   Lianping Li v. Lynch, 839

15   F.3d 144, 150 (2d Cir. 2016).

16         Given the agency’s foregoing inconsistency findings and

17   Zhang’s submission of her aunt’s false statement, the totality

18   of    the    circumstances        supports       the     adverse     credibility

19   determination.        See Xiu Xia Lin, 534 F.3d at 165-66; Tu Lin,

20   446 F.3d at 402; Siewe, 480 F.3d at 170.                           A reasonable

21   adjudicator would not be compelled to conclude otherwise.                         Xiu

22   Xia   Lin,    534   F.3d     at    167.        The    credibility       finding   is


                                               7
1    dispositive of asylum, withholding of removal, and CAT relief

2    because all three claims are based on the same factual

3    predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

4    2006).

5         For the foregoing reasons, the petition for review is

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

7    that the Court previously granted in this petition is VACATED.

8    Any pending request for oral argument in this petition is DENIED

9    in   accordance   with   Federal   Rule   of   Appellate   Procedure

10   34(a)(2), and Second Circuit Local Rule 34.1(b).

11                                  FOR THE COURT:
12                                  Catherine O’Hagan Wolfe, Clerk




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