         12-2648
         Zhu v. Holder
                                                                                        BIA
                                                                                  Nelson, IJ
                                                                               A094 793 291
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       DANYING ZHU,
14                Petitioner,
15
16                       v.                                     12-2648
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
26                                     Assistant Attorney General; John S.
27                                     Hogan, Senior Litigation Counsel;
28                                     Laura M.L. Maroldy, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United States Department of Justice,
31                                     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       Danying Zhu, a native and citizen of the People’s

 6   Republic of China, seeks review of a June 11, 2012, decision

 7   of the BIA affirming the July 13, 2011, decision of

 8   Immigration Judge (“IJ”) Barbara A. Nelson, which denied her

 9   application for asylum, withholding of removal, and relief

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

11   Zhu, No. A094 793 291 (B.I.A. June 11, 2012), aff’g No. A094

12   793 291 (Immig. Ct. N.Y. City July 13, 2011).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have

16   considered both the IJ’s and the BIA’s opinions “for the

17   sake of completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237

18   (2d Cir. 2008) (per curiam).   The applicable standards of

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

20   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       For applications such as Zhu’s, governed by the

22   amendments made to the Immigration and Nationality Act by

23   the REAL ID Act of 2005, the agency may, “[c]onsidering the

                                    2
 1   totality of the circumstances,” base a credibility

 2   determination on, among other things, the applicant’s

 3   demeanor or the consistency of her statements, “without

 4   regard to whether an inconsistency, inaccuracy, or falsehood

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

 6   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534

 7   F.3d 162, 167 (2d Cir. 2008) (per curiam).

 8       The agency reasonably concluded that Zhu’s testimony

 9   was undermined by her admission that she lied to immigration

10   officials about her purpose for coming to the United States

11   when she initially crossed the border.   See Siewe v.

12   Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).    Similarly, the

13   agency reasonably relied on the inconsistency between Zhu’s

14   testimony that she never applied for a visa to come to the

15   United States, and evidence offered by the Department of

16   Homeland Security showing that Zhu applied for a visa in

17   2007, as well as her inconsistent testimony regarding the

18   date of her sterilization in China.

19       While the agency’s credibility finding on its own

20   “constitute[s] sufficient evidence that [a Petitioner]

21   failed to carry his burden of proof,” Zhou Yung Zhang v.

22   INS, 386 F.3d 66, 79 (2d Cir. 2004), the agency strengthened


                                  3
 1   the credibility determination by finding that Zhu failed to

 2   independently corroborate her claim.   Biao Yang v. Gonzales,

 3   496 F.3d 268, 273 (2d Cir. 2007) (an asylum applicant’s

 4   failure to corroborate his testimony may bear on his

 5   credibility “because the absence of corroboration in general

 6   makes an applicant unable to rehabilitate testimony that has

 7   already been called into question”).   The agency did not err

 8   in declining to afford probative weight to a letter from

 9   Zhu’s father corroborating that the sterilization was

10   involuntary, as he did not have any firsthand knowledge of

11   the events.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

12   F.3d 315, 342 (2d Cir. 2006) (finding that the weight

13   afforded to an applicant’s evidence in immigration

14   proceedings lies largely within the discretion of the

15   agency).

16       Zhu’s challenges to the IJ’s demeanor finding–that the

17   IJ improperly questioned her regarding her previous use of

18   an intrauterine device (“IUD”) and improperly assumed she

19   was untruthful because she showed emotion only when

20   discussing her divorce from her husband, and not while

21   discussing her sterilization procedure– do not compel remand

22   as: (1) the questioning concerning the IUD was not improper;


                                   4
 1   (2) this Court gives “particular deference [to the IJ’s

 2   demeanor finding] . . .   in recognition of the fact that the

 3   IJ’s ability to observe the witness’s demeanor places [the

 4   IJ] in the best position to evaluate whether apparent

 5   problems in the witness’s testimony suggest a lack of

 6   credibility,” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d

 7   104, 113 (2d Cir. 2005) (internal quotation marks and

 8   citation omitted); and (3) remand would be futile because we

 9   can predict with confidence – based on the alternative bases

10   supporting the credibility determination described above –

11   that the outcome would not change, see Shunfu Li v. Mukasey,

12   529 F.3d 141, 150 (2d Cir. 2008) (noting that remand is

13   futile when the Court can confidently “predict that the

14   agency would reach the same decision absent the errors that

15   were made”).

16       Given the admitted misrepresentation, inconsistencies,

17   demeanor finding, and lack of corroboration, we defer to the

18   agency’s adverse credibility determination.   Xiu Xia Lin,

19   534 F.3d at 167.   As the only evidence of a threat to Zhu’s

20   life or freedom depended on her credibility, the adverse

21   credibility determination in this case is dispositive of her

22   claims for asylum, withholding of removal, and CAT relief.

23   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006);
                                   5
 1   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523

 2   (2d Cir. 2005).

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

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

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

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




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