     15-3736
     Zou v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 443 068

                            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   26th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            GERARD E. LYNCH,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHEN MIN ZOU,
14            Petitioner,
15
16                     v.                                            15-3736
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       James A. Lombardi, Law Office of
24                                         James A. Lombardi, P.C., New York,
25                                         N.Y.
26
27   FOR RESPONDENT:                       Benjamin C. Mizer, Principal
28                                         Deputy Assistant Attorney
29                                         General; Shelley R. Goad,
30                                         Assistant Director; Russell J.E.
31                                         Verby, Senior Litigation Counsel,
1                                   Office of Immigration Litigation,
2                                   United States Department of
3                                   Justice, 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 is

8    DENIED.

9          Petitioner Zhen Min Zou, a native and citizen of China,

10   seeks review of a November 6, 2015, decision of the BIA affirming

11   a March 4, 2014, decision of an Immigration Judge (“IJ”) denying

12   Zou’s application for asylum, withholding of removal, and

13   relief under the Convention Against Torture (“CAT”).         In re

14   Zhen Min Zou, No. A205 443 068 (B.I.A. Nov. 6, 2015), aff’g No.

15   A205 443 068 (Immig. Ct. N.Y. City Mar. 4, 2014).        We assume

16   the   parties’   familiarity   with   the   underlying   facts   and

17   procedural history in this case.

18         We have reviewed the decisions of both the IJ and the BIA.

19   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).      The

20   applicable standards of review are well established.             See

21   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

22   165-66 (2d Cir. 2008).

23         The governing REAL ID Act credibility standard provides

24   that the agency must “[c]onsider[] the totality of the


                                     2
1    circumstances,” and may base an adverse credibility finding on

2    an applicant’s “demeanor, candor, or responsiveness,” the

3    plausibility of his account, and inconsistencies in his or his

4    witness’s statements, “without regard to whether” they go “to

5    the heart of the applicant’s claim.”      8 U.S.C.

6    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.   “[E]ven

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

8    separately, concern matters collateral or ancillary to the

9    claim, the cumulative effect may nevertheless be deemed

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

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

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

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

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

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

16   do more than offer a plausible explanation for his inconsistent

17   statements to secure relief; he must demonstrate that a

18   reasonable fact-finder would be compelled to credit his

19   testimony.”   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

20   (internal quotation marks omitted).      For the reasons that

21   follow, we conclude that substantial evidence supports the

22   agency’s adverse credibility determination.


                                     3
1        First, the agency reasonably relied on an inconsistency

2    between Zou’s testimony and his church’s letter concerning how

3    often he attended church in the United States.   See Xiu Xia Lin,

4    534 F.3d at 163-64; Tu Lin, 446 F.3d at 402.   Zou testified that

5    he had attended church every week since February 2012; however,

6    the letter that Zou provided from his church stated that he had

7    attended church 21 to 25 times between May 2012 and April 2013.

8    When confronted with this discrepancy, Zou responded that his

9    church’s “annual obligations” only required him to attend more

10   than 25 times; he then explained that he had testified that he

11   attended weekly because he was “too nervous” and did not

12   understand the question.     The agency was not compelled to

13   accept these explanations.    See Majidi, 430 F.3d at 80.

14       Second, the agency reasonably relied on Zou’s inconsistent

15   testimony about how he found his U.S. church.    See Xiu Xia Lin,

16   534 F.3d at 163-64; Tu Lin, 446 F.3d at 402.   Zou testified that

17   he found the church himself; however, he later testified that

18   a friend introduced him to the church after he was unable to

19   find one on his own.   When confronted with this discrepancy,

20   Zou stated that he had misspoken earlier because he was nervous.

21   The agency was not compelled to accept this explanation, and

22   the IJ reasonably questioned why Zou had not submitted a


                                    4
1    supporting letter from his friend, who resided in the United

2    States and had also purportedly attended Zou’s underground

3    church in China.    See Majidi, 430 F.3d at 80; Biao Yang v.

4    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (An applicant’s

5    failure to corroborate testimony may bear on credibility,

6    either because the absence of particular evidence is viewed as

7    suspicious, or “because the absence of corroboration in general

8    makes an applicant unable to rehabilitate testimony that has

9    already been called into question.”).

10        Third,   the   agency   reasonably   relied   on   extensive

11   inconsistencies between Zou’s testimony and that of his U.S.

12   church witness, Chen, about their church attendance together.

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

14   First, Zou testified that he never attended the meals after the

15   sermons and, specifically, that he had never attended a meal

16   with Chen. However, Chen testified that Zou had joined her at

17   the meals multiple times.      Second, Zou testified that he

18   attended church for the first time on a Tuesday but Chen

19   testified that there are no services on Tuesdays. Third, Zou

20   testified that he last attended church with Chen the Sunday

21   before the hearing at 10:45am and that he had seen Chen at church

22   on a Monday one week before the hearing.           However, Chen


                                     5
1    testified that she has only attended 9:00am Sunday services for

2    the past month due to her health.         In response to these

3    inconsistencies, Zou argues that the inconsistencies arising

4    from Chen’s testimony should not have affected his credibility

5    because Chen is 80 years old.    However, as the agency observed,

6    it was Zou’s decision to offer Chen as a witness, and he “offered

7    no evidence suggesting that her memory or other physical

8    condition accounts for their entirely discrepant testimony.”

9    The agency therefore did not err in rejecting Zou’s explanation

10   for these inconsistencies.      See Majidi, 430 F.3d at 80.

11        Lastly, the IJ reasonably found that Zou’s corroborating

12   evidence did not rehabilitate his credibility because his

13   letters were from witnesses unavailable for cross-examination

14   and his remaining documentation from China was unauthenticated

15   by any means.   See In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209,

16   215 (B.I.A. 2010) (finding that unsworn letters from alien’s

17   friends and family were insufficient to provide substantial

18   support for alien’s claims because authors were interested

19   witnesses not subject to cross-examination), overruled on other

20   grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d

21   Cir. 2012); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143,

22   148 (2d Cir. 2007).   Zou does not challenge this finding in his


                                      6
1    brief, and so it stands as an appropriate basis for the adverse

2    credibility determination.

3        Zou argues that the adverse credibility determination

4    cannot be supported by a totality of the circumstances because

5    his testimony was consistent with his application and

6    documentary evidence regarding the events that occurred in

7    China.    However, it is appropriate for the IJ to make a negative

8    credibility determination based on inconsistencies “without

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

10   claim.”    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

11   at 163-64.    And an IJ may “rel[y] on discrepancies or lacunae

12   that, if taken separately, concern matters collateral or

13   ancillary to the claim” if their “cumulative effect . . . is

14   deemed consequential.”    Tu Lin, 446 F.3d at 402.    Here, the IJ

15   reasonably concluded that “[w]hile the

16   discrepancies . . . concern [Zou’s] practice of Christianity

17   in the United States, given the amount of those discrepancies,

18   the Court finds not credible the entirety of [Zou’s] asylum

19   application.”    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

20   534 F.3d at 165-66; Tu Lin, 446 F.3d at 402.        A reasonable

21   adjudicator would not be compelled to conclude otherwise.     See

22   Xiu 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.

7                                FOR THE COURT:
8                                Catherine O’Hagan Wolfe, Clerk




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