         08-4675-ag
         Zhang v. BCIS
                                                                                       BIA
                                                                                   Romig, IJ
                                                                               A099-930-675
                          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 18 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11       _______________________________________
12
13       FA SHEN ZHANG,
14                Petitioner,
15
16                       v.                                     08-4675-ag
17                                                              NAC
18       BUREAU OF CITIZENSHIP AND IMMIGRATION
19       SERVICES,
20                 Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               John Chang, New York, New York.
24       FOR RESPONDENT:               Tony West, Assistant Attorney
25                                     General; Linda S. Wernery, Assistant
26                                     Director; Scott Rempell, Attorney,
27                                     Office of Immigration Litigation,
28                                     United States Department of Justice,
29                                     Washington, D.C.
1
2        UPON DUE CONSIDERATION of this petition for review of a

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

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

5    is DENIED.

6        Petitioner Fa Shen Zhang, a native and citizen of the

7    People’s Republic of China, seeks review of an August 29,

8    2008 order of the BIA affirming the October 31, 2007

9    decision of Immigration Judge (“IJ”) Jeffrey L. Romig

10   pretermitting his application for asylum and denying his

11   applications for withholding of removal and relief under the

12   Convention Against Torture (“CAT”).     In re Fa Shen Zhang,

13   No. A 099 930 675 (B.I.A. Aug. 29, 2008), aff’g No. A 099

14   930 675 (Immig. Ct. N.Y. City Oct. 31, 2007).     We assume the

15   parties’ familiarity with the underlying facts and

16   procedural history in this case.

17       When the BIA issues an opinion that fully adopts the

18   IJ’s decision, this Court reviews the IJ’s decision.     See

19   Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d

20   Cir. 2007).   We review the agency’s factual findings,

21   including adverse credibility findings, under the

22   substantial evidence standard.     8 U.S.C. § 1252(b)(4)(B);

23   see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).


                                   2
1    For asylum applications governed by the REAL ID Act of 2005,

2    the agency may, considering the totality of the

3    circumstances, base a credibility finding on an asylum

4    applicant’s demeanor, the plausibility of his or her

5    account, and inconsistencies in his or her statements,

6    without regard to whether they go “to the heart of the

7    applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).   Thus,

8    we “defer . . . to an IJ’s credibility determination unless,

9    from the totality of the circumstances, it is plain that no

10   reasonable fact-finder could make such an adverse

11   credibility ruling.”    Xiu Xia Lin v. Mukasey, 534 F.3d 162,

12   167 (2d Cir. 2008).

13       As an initial matter, because Zhang fails to challenge

14   the agency’s pretermission of his asylum application before

15   this Court, we deem any such challenge waived.    See Yueqing

16   Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

17   2005).   Contrary to the government’s assertion, however,

18   Zhang preserved his challenge to the agency’s denial of his

19   application for CAT relief because in his brief to this

20   Court he sets out the standard for CAT relief, argues that

21   he met that standard, and challenges the primary basis for

22   the IJ’s denial of that relief – the IJ’s adverse



                                    3
1    credibility determination.

2    I.   Past Persecution Claim

3         Substantial evidence supports the IJ’s adverse

4    credibility determination.    Because Zhang does not challenge

5    the IJ’s reliance on the similarities between his

6    declaration and his friend’s letter or the IJ’s rejection of

7    his explanation for those similarities, we deem waived any

8    such challenge.    Thus, that finding stands as a valid   basis

9    for the IJ’s adverse credibility determination.     See id.;

10   see also Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.

11   2008).

12        In finding Zhang not credible, the IJ also relied upon:

13   (1)the omission from Zhang’s asylum application of the

14   beatings he allegedly received during his detention because

15   he failed to provide the names of other underground church

16   members; (2) the inconsistency between Zhang’s testimony

17   that his initial interrogation lasted two to three hours and

18   his later testimony that it only lasted thirty minutes; and

19   (3) Zhang’s unresponsive demeanor during questioning about

20   his detention.    Zhang argues that the omissions and

21   inconsistencies were too minor to support an adverse

22   credibility determination.    Contrary to Zhang’s argument,



                                    4
1    under the REAL ID Act, “an IJ may rely on any inconsistency

2    or omission in making an adverse credibility determination

3    as long as the ‘totality of the circumstances’ establishes

4    that an asylum applicant is not credible.”    Xiu Xia Lin, 534

5    F.3d at 167; see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265

6    (BIA 2007).

7        Contrary to Zhang’s assertion that the IJ did not cite

8    specific examples supporting his demeanor finding, the IJ

9    noted that Zhang’s testimony was unresponsive during

10   questioning regarding his detention.    We accord great

11   deference to such assessments of an applicant’s demeanor.

12   See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).

13   The IJ also properly found that Zhang’s deficient

14   corroboration rendered him unable to rehabilitate his

15   testimony.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

16   F.3d 315, 341 (2d Cir. 2006).

17       Taken as a whole, the IJ’s adverse credibility

18   determination was supported by substantial evidence.      See

19   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

20   Therefore, the IJ properly denied Zhang’s applications for

21   withholding of removal and CAT relief to the extent that

22   they were based on what allegedly occurred in China.      See



                                     5
1    Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong

2    Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

3    2005).

4    II.   Claim Based on Religious Practice in the United States

5          Despite the IJ’s adverse credibility determination, he

6    credited Zhang’s claim that he practices Christianity.

7    Nonetheless, as the IJ found, no evidence indicates either

8    that Chinese authorities would become aware of Zhang’s

9    religious practice or that they would target him on that

10   basis.   See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d

11   Cir. 2008) (finding that “to establish a well-founded fear

12   of persecution in the absence of any evidence of past

13   persecution, an alien must make some showing that

14   authorities in his country of nationality are either aware

15   of his activities or likely to become aware of his

16   activities”); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

17   Cir. 2005) (finding that a fear is not objectively

18   reasonable if it lacks “solid support” in the record and is

19   merely “speculative at best”).    Although Zhang asserts that

20   he need not demonstrate an individual risk of harm because

21   there is a pattern or practice of persecution of Christians

22   in China, we decline to address that unexhausted issue.     See



                                   6
1    Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d

2    Cir. 2007).

3         Because Zhang was unable to show the objective

4    likelihood of persecution needed to make out an asylum claim

5    based on his religious practices in the United States, * he

6    was necessarily unable to meet the higher standard required

7    to succeed on a claim for withholding of removal or CAT

8    relief to the extent all three claims were based on that

9    factual predicate.       See Paul, 444 F.3d at 156; Kyaw Zwar Tun

10   v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (holding that

11   torture is “something more severe than the kind of treatment

12   that would suffice to prove persecution”).

13       For the foregoing reasons, the petition for review is

14   DENIED.       As we have completed our review, any pending motion

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

16
17                                   FOR THE COURT:
18                                   Catherine O’Hagan Wolfe, Clerk
19
20
21




               *
             As stated above, the IJ pretermitted Zhang’s asylum
       application. Nonetheless, for purposes of his analysis,
       he evaluated whether Zhang had met the asylum standard.

                                       7
