     12-4321
     Zheng v. Holder
                                                                                       BIA
                                                                                 Poczter, IJ
                                                                              A087 982 254
                            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 Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 4th day of April, two thousand fourteen.
 5
 6   PRESENT:
 7            ROSEMARY S. POOLER,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JIAN QING ZHENG,
14            Petitioner,
15
16                     v.                                    12-4321
17                                                           NAC
18   ERIC H. HOLDER, JR., UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _______________________________________
22
23   FOR PETITIONER:                Andy Wong, New York, New York.
24
25   FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                  Attorney General; Emily Anne Radford,
27                                  Assistant Director; Craig A. Newell,
28                                  Jr., Trial Attorney; Thanh Khiet T.
29                                  Nguyen, Law Clerk; Office of
30                                  Immigration Litigation, United States
31                                  Department of Justice, Washington,
32                                  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       Petitioner Jian Qing Zheng, a native and citizen of

 6   China, seeks review of an October 12, 2012 decision of the

 7   BIA affirming a July 18, 2011 decision of Immigration Judge

 8   (“IJ”) Aviva L. Poczter, denying Zheng’s application for

 9   asylum, withholding of removal and relief under the

10   Convention Against Torture (“CAT”).     In re Jian Qing Zheng,

11   No. A087 982 254 (B.I.A. Oct. 12, 2012), aff’g No. A087 982

12   254 (Immig. Ct. N.Y. City July 18, 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 review the

16   IJ’s decision directly.     See Shunfu Li v. Mukasey, 529 F.3d

17   141, 146 (2d Cir. 2008).     The applicable standards of review

18   are well established.     See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia

19   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

20       For applications like this one, governed by the REAL ID

21   Act, the agency may base a credibility finding on an asylum

22   applicant’s demeanor, the plausibility of his account, and

23   inconsistencies in his statements, without regard to whether

                                     2
 1   they go “to the heart of the applicant's claim.”     8 U.S.C.

 2   § 1158(b)(1)(B)(iii); Matter of J–Y–C–, 24 I. & N. Dec. 260,

 3   265 (B.I.A. 2007).   Analyzed under these standards, the

 4   agency’s adverse credibility determination is supported by

 5   substantial evidence.

 6       In finding Zheng not credible, the IJ reasonably relied

 7   on the inconsistency between his testimony and his statement

 8   in support of his asylum application as to whether he was

 9   questioned by the police when they raided his church.      This

10   inconsistency was particularly significant because this

11   event was Zheng’s only allegation of past persecution, and

12   he was unable to provide any explanation for the variation

13   between his accounts.   Because the argument was not raised

14   below, we decline to consider Zheng’s assertion that the

15   inconsistency is the result of a translation error in his

16   statement.   See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

17   104, 107 n.1 (2d Cir. 2007).

18       The IJ also reasonably relied on the inconsistencies in

19   the record as to the immigration status of Zheng’s

20   stepmother, and whether anyone was arrested when the police

21   came to the church he was attending.   Zheng was unable to

22   reconcile his inconsistent statements about his stepmother’s


                                    3
 1   citizenship, and we decline to consider the challenges to

 2   the credible fear interview he has raised for the first time

 3   in his appellate brief.   See Lin Zhong, 480 F.3d at 107 n.

 4   1.

 5        In addition to these inconsistencies, the IJ reasonably

 6   found several aspects of Zheng’s testimony to be

 7   implausible.   Notably, Zheng testified that the church he

 8   attended was registered, and therefore “legal” in China, but

 9   was unable to explain why the police would harass or arrest

10   members of a registered church.

11        Further, Zheng testified that he practiced Christianity

12   in the United States but was unable to name any Christian

13   holiday.   Although a credibility finding based on an

14   applicant’s lack of doctrinal knowledge may be erroneous,

15   here, the IJ did not err in relying in part on Zheng’s

16   inability to identify any Christian holidays, given his

17   testimony that he had attended church regularly since

18   entering the United States.   See Rizal v. Gonzales, 442 F.3d

19   84, 90 (2d Cir. 2006) (rejecting “the rationale that a

20   certain level of doctrinal knowledge is necessary in order

21   to be eligible for asylum” on account of a religious

22   affiliation, but recognizing that there may be “instances in


                                   4
 1   which the nature of an individual applicant’s account would

 2   render his lack of a certain degree of doctrinal knowledge

 3   suspect and could therefore provide substantial evidence in

 4   support of an adverse credibility finding”).

 5       Moreover, the IJ reasonably found implausible Zheng’s

 6   testimony that his family was unable to provide a letter in

 7   support of his application due to his father’s illiteracy,

 8   because he also testified that his father had applied for a

 9   visa on his behalf.    A reasonable fact-finder would not be

10   compelled to credit Zheng’s explanation that his father had

11   obtained help in applying for a visa, because this did not

12   explain why his father could not also have found help to

13   prepare a letter.     See Wensheng Yan v. Mukasey, 509 F.3d 63,

14   67 (2d Cir. 2009) (finding that, where the IJ’s findings are

15   “tethered to record evidence, and there is nothing else in

16   the record from which a firm conviction of error could

17   properly be derived,” the inherent implausibility finding

18   should not be disturbed); Majidi v. Gonzales, 430 F.3d 77,

19   80-81 (2d Cir. 2005) (holding that the agency need not

20   credit an applicant’s explanations unless those explanations

21   would compel a reasonable fact-finder to do so).

22       Accordingly, substantial evidence supports the agency’s

23   adverse credibility determination, see 8 U.S.C.
                                     5
 1   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167, and it

 2   is not necessary to reach the IJ’s alternative finding that,

 3   even if credible, Zheng failed to meet his burden of proof.

 4   Having reasonably found on credibility grounds that Zheng

 5   failed to establish eligibility for asylum, the agency did

 6   not err in denying withholding of removal and relief under

 7   the CAT, as these claims shared the same factual predicate.

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

 9   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d

10   Cir. 2005).

11       For the foregoing reasons, the petition for review is

12   DENIED.

13                              FOR THE COURT:
14                              Catherine O’Hagan Wolfe, Clerk
15
16
17




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