         11-4243                                                                        BIA
         He v. Holder                                                          A087 467 417



                         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 20th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                SUSAN L. CARNEY,
10                CHRISTOPHER F. DRONEY,
11                     Circuit Judges.
12       _____________________________________
13
14       ZHU HE, AKA JIAN ZHENG HE,
15                Petitioner,
16
17                      v.                                      11-4243
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Feng Li, Moslemi and Associates,
25                                     Inc., New York, New York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; Linda S. Wernery,
29                                     Assistant Director; Gregory M.
30                                     Kelch, Attorney, Office of
 1                             Immigration Litigation, United
 2                             States Department of Justice,
 3                             Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Zhu He, a native and citizen of the People’s Republic

10   of China, seeks review of a September 23, 2011, decision of

11   the BIA affirming the May 25, 2010, decision of an

12   Immigration Judge (“IJ”), which denied his application for

13   asylum, withholding of removal and relief under the

14   Convention Against Torture (“CAT”).     In re Zhu He, No. A087

15   467 417 (B.I.A. Sept. 23, 2011), aff’g No. A087 467 417

16   (Immig. Ct. N.Y. City May 25, 2010).    We assume the parties’

17   familiarity with the underlying facts and procedural history

18   in this case.

19       Under the circumstances of this case, we have reviewed

20   both the BIA’s and the IJ’s decisions, including the

21   portions of the IJ’s decision not explicitly discussed by

22   the BIA.     Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

23   Cir. 2005) (per curiam).    The applicable standards of review

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

25   also Xiu Xia Liu v. Mukasey, 534 F.3d 162, 167 (2d Cir.

26   2008) (per curiam).

                                     2
 1       For asylum applications, such as He’s, governed by the

 2   amendments made to the Immigration and Nationality Act by

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

 4   totality of the circumstances, base a credibility finding on

 5   an asylum applicant’s demeanor, candor, or responsiveness,

 6   as well as any inconsistencies between the applicant’s

 7   statements and other record evidence, without regard to

 8   whether the inconsistencies go “to the heart of the

 9   applicant’s claim.”   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

10   Xia Lin, 534 F.3d at 167.

11       The IJ found that He appeared uncomfortable and “looked

12   up” when asked questions that diverged from his prepared

13   statement, but He claims that he was merely searching his

14   memory.   However, He’s explanation for his questionable

15   demeanor “misapprehends the degree of deference we must

16   afford to the IJ’s credibility findings” because a

17   petitioner “must do more than offer a plausible explanation

18   ... to secure relief; he must demonstrate that a reasonable

19   fact-finder would be compelled to credit his testimony.”

20   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (emphasis

21   and internal quotation marks omitted); see also Li Zu Guan

22   v. INS, 453 F.3d 129, 139-40 (2d Cir. 2006) (noting that


                                   3
 1   particular deference is given to the trier of fact’s

 2   assessment of demeanor because demeanor is “paradigmatically

 3   the sort of evidence that a fact-finder is best positioned

 4   to evaluate”).

 5          He also claims that the agency’s inconsistency findings

 6   were not supported by substantial evidence because they were

 7   too “minor and equivocal,” and the agency failed to consider

 8   his plausible explanations for the inconsistencies between

 9   his testimony and his mother’s letter.    However,“an IJ may

10   rely on any inconsistency or omission in making an adverse

11   credibility determination as long as the totality of the

12   circumstances establishes that an asylum applicant is not

13   credible.”    Xiu Xia Lin, 534 F.3d at 167 (emphasis in

14   original) (internal quotation marks omitted).    Moreover, the

15   agency reasonably declined to credit He’s explanation that

16   the inconsistencies were due to a translation error because

17   the new translation of his mother’s letter was still

18   inconsistent with his testimony.    See Majidi, 430 F.3d at

19   80-81 (the agency need not credit an applicant’s

20   explanations for inconsistent testimony unless those

21   explanations would compel a reasonable fact-finder to do

22   so).


                                    4
 1       The agency’s adverse credibility determination was

 2   further supported by He’s failure to corroborate his claim.

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

 4   (per curiam) (explaining that an applicant’s corroborating

 5   evidence may rehabilitate otherwise questionable testimony).

 6   Because He’s testimony was not otherwise credible, the

 7   agency properly relied on the lack of corroborative

 8   evidence, including medical records and employment

 9   verification, in finding that He failed to rehabilitate his

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

11   F.3d 315, 341 (2d Cir. 2006) (concluding that the agency was

12   not required to identify and determine whether corroborative

13   evidence is reasonably available when the applicant was not

14   otherwise credible).     Moreover, He’s claim that the

15   corroborative evidence identified by the agency was not

16   reasonably available is belied by his own testimony that he

17   failed to submit it because he did not think to request it.

18       Accordingly, because the totality of the circumstances

19   supports the agency’s adverse credibility determination, we

20   defer to that finding.     See 8 U.S.C. § 1158(b)(1)(B)(iii);

21   Xiu Xia Lin, 534 F.3d at 167.       As the only evidence of a

22   threat to He’s life or freedom depended upon his

23   credibility, the adverse credibility determination in this
                                     5
 1   case necessarily precludes success on his claims for asylum

 2   and withholding of removal.    See Paul v. Gonzales, 444 F.3d

 3   148, 156 (2d Cir. 2006).   Finally, He has waived his CAT

 4   claim.

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

 8   is VACATED, and any pending motion for a stay of removal in

 9   this petition is DISMISSED as moot. Any pending request for

10   oral argument in this petition is DENIED in accordance with

11   Federal Rule of Appellate Procedure 34(a)(2), and Second

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15




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