         10-1056-ag
         Zhu v. Holder
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                               A094 787 868
                          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 24th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                       Circuit Judges.
11       ______________________________________
12
13       YUNAN ZHU,
14                Petitioner,
15
16                       v.                                     10-1056-ag
17                                                              NAC
18       ERIC H. HOLDER, JR.,
19       UNITED STATES ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               G. Victoria Calle, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Russell J. E. Verby, Senior
28                                     Litigation Counsel; John D.
29                                     Williams, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Yunan Zhu, a native and citizen of the People’s

 6   Republic of China, seeks review of a February 25, 2010,

 7   order of the BIA affirming the May 27, 2008, decision of

 8   Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied

 9   Zhu’s application for asylum, withholding of removal, and

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

11   Yunan Zhu, No. A094 787 868 (B.I.A. Feb. 25, 2010), aff’g

12   No. A094 787 868 (Immig. Ct. N.Y. City May 27, 2008).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008).   The applicable standards of review are well-

19   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Corovic

20   v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey,

21   529 F.3d 99, 110 (2d Cir. 2008).    For asylum applications,

22   such as Zhu’s, governed by the REAL ID Act, the agency may,


                                     2
 1   considering the totality of the circumstances, base a

 2   credibility finding on an applicant’s demeanor, the

 3   plausibility of his account, or inconsistencies in his

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

 5   of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).

 6       Contrary to Zhu’s position, substantial evidence

 7   supports the agency’s adverse credibility determination.

 8   The agency reasonably relied on Zhu’s inconsistencies in

 9   arriving at its decision.    See Xiu Xia Lin v. Mukasey, 534

10   F.3d 162, 166-167 (2d Cir. 2008).     As the IJ noted, when

11   asked when he learned that his supervisor, the man who

12   introduced him to Falun Gong, was a Falun Gong practitioner,

13   Zhu first said he discovered this in 2002, then changed his

14   answer to 2005, and later reverted to his earlier answer of

15   2002.   Similarly, Zhu first testified that he began

16   practicing Falun Gong in May 2004, but later testified that

17   he began practicing in 2005.     Zhu also testified that he

18   began practicing Falun Gong in January 2005 and stopped

19   practicing that same month, yet claimed that he practiced

20   Falun Gong for ten months.     When confronted with this

21   impossibility, Zhu changed his testimony and stated that he

22   practiced Falun Gong from January 2005 to February 2005,


                                     3
 1   about one month.     In addition, Zhu’s written application

 2   provided that a friend warned him in person that he was

 3   going to be arrested, but he testified that the friend

 4   called him on the phone.     Given these inconsistencies, the

 5   agency’s adverse credibility finding is supported by

 6   substantial evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii);

 7   see also Xiu Xia Lin, 534 F.3d at 167 (holding that “[w]e

 8   defer . . . to an IJ’s adverse credibility determination

 9   unless, from the totality of the circumstances, it is plain

10   that no reasonable fact-finder could make such an adverse

11   credibility ruling”).

12       The agency also reasonably relied on implausibilities

13   in Zhu’s testimony in arriving at its adverse credibility

14   determination.     In making a finding that an applicant’s

15   claim is inherently implausible, an IJ is not required to

16   “explain in precise detail what made each identified act

17   implausible.”     See Wensheng Yan v. Mukasey, 509 F.3d 63, 67

18   (2d Cir. 2007).     While “bald” speculation is an

19   impermissible basis for an adverse credibility finding,

20   “[t]he speculation that inheres in inference is not ‘bald’

21   if the inference is made available to the factfinder by

22   record facts, or even a single fact, viewed in the light of

23   common sense and ordinary experience.”     Siewe v. Gonzales,

                                     4
 1   480 F.3d 160, 168-69 (2d Cir. 2007).

 2       Here, the agency reasonably found it implausible that

 3   despite testifying that he did not work, Zhu testified that

 4   he was “too busy” to practice Falun Gong more than six or

 5   seven times a month and that Zhu did not know the names of

 6   any of the countries he passed through on his way to the

 7   United States.   Similarly, the agency reasonably found it

 8   dubious that although Zhu had prepared eight paragraphs

 9   detailing his experiences for submission with his asylum

10   application, he was unable to articulate the same

11   information at his merits hearing with any real clarity.

12   Because the agency’s implausibility finding is “tethered to

13   record evidence, and there is nothing else in the record

14   from which a firm conviction of error could properly be

15   derived,” we will not disturb the finding.   See Wensheng

16   Yan, 509 F.3d at 67; see also Siewe, 480 F.3d at 169.

17       Zhu also argues that the IJ erred in failing to give

18   him the opportunity to explain non-obvious inconsistencies.

19   The agency may not rest an adverse credibility finding on a

20   non-dramatic, putative inconsistency without first putting

21   the applicant on notice and giving the applicant a chance to

22   reconcile the testimony.   Ming Shi Xue v. BIA, 439 F.3d 111,

23   125 (2d Cir. 2006); see also Zhi Wei Pang v. BCIS, 448 F.3d

                                   5
 1   102, 109-10 (2d Cir. 2006).    However, as Zhu’s

 2   inconsistencies were obvious, the agency was not required to

 3   solicit an explanation.    See Majidi v. Gonzales, 430 F.3d

 4   77, 81 (2d Cir. 2005).    Furthermore, the record clearly

 5   indicates that Zhu had the opportunity to address the

 6   discrepancies in his testimony, and in fact took that

 7   opportunity on several occasions.    Nothing in Zhu’s

 8   explanations, however, required the agency to credit them.

 9   See id. at 80-81 (holding that in order to secure relief, a

10   petitioner “must do more than offer a plausible explanation

11   for his inconsistent statements . . .; he must demonstrate

12   that a reasonable fact-finder would be compelled to credit

13   his testimony” (emphasis in original) (internal quotation

14   marks omitted)).   Nor must the agency “expressly parse or

15   refute on the record each and every one of [an applicant’s]

16   purported explanations for testimonial inconsistencies or

17   evidentiary gaps.” Xiao Ji Chen v. U.S. Dep’t of Justice,

18   471 F.3d 315, 338 n.17 (2d Cir. 2006).

19       Because Zhu’s claims were all based on the same factual

20   predicate, the agency’s adverse credibility determination

21   was a proper basis for the denial of both asylum and

22   withholding of removal.    See Paul v. Gonzales, 444 F.3d 148,

23   156 (2d Cir. 2006).

                                    6
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

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