         10-5222-ag (L)
         Zhou v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A089 198 254
                           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 11th day of July, two thousand twelve.
 5
 6       PRESENT:
 7                 JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       NAIQIANG ZHOU,
14                Petitioner,
15
16                        v.                                    10-5222-ag (L);
17                                                              11-2667-ag (Con)
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22
23       _____________________________________
24
25       FOR PETITIONER:               Thomas V. Massucci, New York, New
26                                     York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Blair T. O’Connor,
30                                     Assistant Director; Ari Nazarov,
 1                            Trial Attorney, Office of
 2                            Immigration Litigation, United
 3                            States Department of Justice,
 4                            Washington, D.C.
 5
 6        UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10        Niaqiang Zhou, a native and citizen of the People’s

11   Republic of China, seeks review of a November 29, 2010,

12   order of the BIA affirming the August 19, 2009, decision of

13   an Immigration Judge (“IJ”), which denied his application

14   for asylum, withholding of removal, and relief under the

15   Convention Against Torture (“CAT”).   In re Naiqiang Zhou,

16   No. A089 198 254 (B.I.A. Nov. 29, 2010), aff’g No. A089 198

17   254 (Immig. Ct. N.Y. City Aug. 19, 2009).   Zhou also seeks

18   review of a May 31, 2011, order of the BIA denying his

19   motion to reopen.   In re Naiqiang Zhou, No. A089 198 254

20   (B.I.A. May 31, 2011).   We assume the parties’ familiarity

21   with the underlying facts and procedural history in this

22   case.

23   I.   2010 Order of Removal

24        Under the circumstances of this case, we have reviewed

25   the decision of the IJ as supplemented by the BIA.   See Yan


                                    2
 1   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).        The

 2   applicable standards of review are well established.

 3   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

 4   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 5       For applications such as Zhou’s, governed by the

 6   amendments made to the Immigration and Nationality Act by

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

 8   totality of the circumstances, base a credibility finding on

 9   the applicant’s “demeanor, candor, or responsiveness,” the

10   plausibility of his account, and inconsistencies in his

11   statements, without regard to whether they go “to the heart

12   of the applicant’s claim.”     See 8 U.S.C.

13   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

14   167 (2d Cir. 2008).   We will “defer to an IJ’s credibility

15   determination unless, from the totality of the

16   circumstances, it is plain that no reasonable fact-finder

17   could make” such a ruling.     Xiu Xia Lin, 534 F.3d at 167.

18       The IJ’s adverse credibility determination is supported

19   by substantial evidence.     The IJ reasonably based his

20   credibility finding on: (1) inconsistencies between Zhou’s

21   testimony that a raid on his house church occurred during a

22   baptism on Easter and a letter from fellow church member Jie


                                     3
 1   Bin Hu that failed to mention the raid; (2) Zhou’s evasive

 2   demeanor and non-responsive answers in explaining Hu’s

 3   omission and his own absence from the baptism; and (3)

 4   Zhou’s failure to provide reliable letters from church

 5   members present during the Easter raid or the raid during

 6   which Zhou allegedly was arrested.   Moreover, the IJ

 7   reasonably rejected Zhou’s explanation for Hu’s failure to

 8   mention the Easter raid.    See Majidi v. Gonzales, 430 F.3d

 9   77, 80-81 (2d Cir. 2005).    Given the inconsistencies between

10   Zhou’s testimony and Hu’s letter, as well as the IJ’s

11   demeanor finding and the lack of reliable corroborating

12   evidence, the totality of the circumstances supports the

13   agency’s adverse credibility determination.

14       Zhou argues that, despite the IJ’s adverse credibility

15   determination, he established a well-founded fear of

16   persecution based on his credible testimony that he

17   practices Christianity and on the background materials he

18   submitted.   However, the IJ reasonably found that Zhou, who

19   testified that he attended small house church meetings of

20   eleven members, failed to demonstrate that he would be

21   persecuted in China, because the 2007 and 2008 State

22   Department reports he submitted showed that the Chinese


                                    4
 1   government’s treatment of unregistered Christian church

 2   members varied, and that small gatherings were “quietly

 3   tolerated.”   Because Zhou was unable to show the objectively

 4   reasonable fear of persecution needed to make out an asylum

 5   claim, he was necessarily unable to meet the higher standard

 6   required to succeed on a claim for withholding of removal.

 7   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

 8   II. 2011 Motion to Reopen

 9       The BIA’s denial of Zhou’s motion to reopen as untimely

10   was not an abuse of discretion.   See Kaur v. BIA, 413 F.3d

11   232, 233 (2d Cir. 2005) (per curiam).    A motion to reopen

12   generally must be filed no later than 90 days after the date

13   on which the final administrative decision was rendered in

14   the proceedings sought to be reopened.    8 U.S.C.

15   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    There is no

16   dispute that Zhou’s March 2011 motion was untimely, as the

17   final administrative order was issued in November 2010.       The

18   time limitation does not apply to a motion to reopen if it

19   is “based on changed circumstances arising in the country of

20   nationality or in the country to which deportation has been

21   ordered, if such evidence is material and was not available

22   and could not have been discovered or presented at the

23   previous hearing.”   8 C.F.R. § 1003.2(c)(3)(ii); see also
                                   5
 1   8 U.S.C. § 1229a(c)(7)(C)(ii).      However, substantial

 2   evidence supports the BIA’s finding that Zhou failed to

 3   establish changed circumstances in China.      See Jian Hui Shao

 4   v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

 5       Zhou contends that the letters he submitted from his

 6   wife and friend in China demonstrated changed circumstances

 7   in that Chinese officials had become aware of his

 8   involvement in house churches and sought to arrest him.      As

 9   the BIA reasonably found, however, the letter from his wife

10   he submitted at his merits hearing similarly asserted that

11   the Chinese police knew about his church activities and had

12   previously questioned his wife as to his whereabouts.

13   Furthermore, given the underlying adverse credibility

14   determination, the BIA did not abuse its discretion in

15   declining to credit Zhou’s evidence.      Qin Wen Zheng v.

16   Gonzales, 500 F.3d 143, 147-48 (2d Cir. 2007).

17       Because the evidence Zhou submitted was insufficient to

18   establish a change in the Chinese government’s treatment of

19   house church members, the BIA did not abuse its discretion

20   in concluding that Zhou failed to meet an exception to the

21   filing deadline and, accordingly, in denying his untimely

22   motion to reopen.   See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii);

23   8 C.F.R. § 1003.2(c)(2), (3).
                                     6
 1       For the foregoing reasons, the petition for review is

 2   DENIED.    As we have completed our review, Petitioner’s

 3   motion for a stay of removal in this petition is DISMISSED

 4   as moot. His pending request for oral argument in this

 5   petition is DENIED in accordance with Federal Rule of

 6   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

 7   34.1(b).

 8                                FOR THE COURT:
 9                                Catherine O’Hagan Wolfe, Clerk
10
11




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