     15-1329
     Zhao v. Lynch
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A088 345 824

                          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   29th day of November, two thousand sixteen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            DENNY CHIN,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   XIN ZHAO,
14                   Petitioner,
15
16                   v.                                              15-1329
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Zhen Liang Li, New York, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; John S.
27                                       Hogan, Assistant Director; Laura
28                                       M.L. Maroldy, Trial Attorney, Office
29                                       of Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
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 is

4    DENIED.

5        Petitioner Xin Zhao, a native and citizen of the People’s

6    Republic of China, seeks review of a March 26, 2015, decision

7    of the BIA affirming an October 24, 2013, decision of an

8    Immigration Judge (“IJ”) denying Zhao’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).   In re Xin Zhao, No. A088 345 824 (B.I.A. Mar.

11   26, 2015), aff’g No. A088 345 824 (Immig. Ct. N.Y. City Oct.

12   24, 2013).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       We have considered both the IJ’s and the BIA’s opinions “for

15   the sake of completeness.”       Wangchuck v. Dep’t of Homeland

16   Sec., 448 F.3d 524, 528 (2d Cir. 2006).              The applicable

17   standards of review are well established.             See 8 U.S.C.

18   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

19   Cir. 2009).

20       The   agency   may,   in   light   of   “the   totality   of   the

21   circumstances . . . base a credibility determination on the

22   demeanor, candor, or responsiveness of the applicant,” the

23   plausibility of the applicant’s account, and inconsistencies

                                      2
1    in   his   statements,    “without     regard    to   whether”   those

2    inconsistencies go “to the heart of the applicant’s claim.”          8

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

4    162, 165 (2d Cir. 2008).         Under the “substantial evidence”

5    standard of review, “we defer . . . to an IJ’s credibility

6    determination unless, from the totality of the circumstances,

7    it is plain that no reasonable fact-finder could make such an

8    adverse credibility ruling.”       Xiu Xia Lin, 534 F.3d at 167.

9         The determination against Zhao is sound.           Zhao claimed

10   that after being fined by family planning authorities for having

11   a second child, he made extra money by distributing Falun Gong

12   fliers on the street.    The IJ cited several inconsistencies and

13   unresponsive answers in finding Zhao not to be credible.

14        The   IJ   asked   Zhao   about   his    interactions   with   the

15   recipients of the fliers--that is, how Zhao would respond if

16   someone asked why Falun Gong was a good idea.          Zhao responded

17   that he would walk away, then described the contents of the

18   fliers, then explained why he saw the value of Falun Gong (though

19   he was not a practitioner), and finally testified that he would

20   tell people that Falun Gong is not an evil organization as

21   charged by the Chinese government.           “Drawing inferences from

22   direct and circumstantial evidence is a routine and necessary

23   task of any factfinder.”       Siewe v. Gonzales, 480 F.3d 160, 167

                                        3
1    (2d Cir. 2007).   The IJ had the discretion to find that Zhao’s

2    nonresponsive and inconsistent answers called into question

3    whether he actually handed out the fliers.

4        Another area of concern related to how Zhao prepared for

5    the risk of distributing fliers for a banned organization.

6    Several times, the IJ asked Zhao how he was instructed to respond

7    if the police questioned him.   Zhao responded by describing how

8    he actually answered questions from the police, that he was told

9    to say he got the fliers from the “outside,” and finally, that

10   he could just give any name so long as he did not reveal the

11   source of the fliers.   The IJ reasonably found that Zhao’s vague

12   answers to this question eroded his credibility.    See Jin Shui

13   Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003), overruled

14   on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494

15   F.3d 296 (2d Cir. 2007).

16       A third area concerned whether Zhao told his parents that

17   he was distributing Falun Gong fliers, and if not, why not.

18   Zhao testified that they learned about it after his arrest, and

19   that he withheld that information from them so that they would

20   not worry.   But earlier, Zhao had testified that he did not

21   think it would be serious if he was caught distributing fliers.

22   When the IJ followed up, Zhao said that because he was trying

23   to avoid sterilization, he did not tell many people that he was

                                     4
1    giving out the fliers.        Zhao then explained that he distributed

2    the fliers to strangers in a different village.                       “[I]n

3    assessing the credibility of an asylum applicant’s testimony,

4    an IJ is entitled to consider whether the applicant’s story is

5    inherently implausible.”          Wensheng Yan v. Mukasey, 509 F.3d 63,

6    66 (2d Cir. 2007).         The IJ expressed reasonable incredulity

7    about     Zhao’s     story:   if    he    was   worried    about     forced

8    sterilization, why was he handing out fliers to strangers?              And

9    if he was handing out fliers to strangers, why hide it from his

10   family?

11       Another problematic area was Zhao’s marital history.                 He

12   testified that because of the sterilization threat and their

13   desire to have more children, he and his wife divorced and later

14   remarried.    He omitted that fact from his asylum application.

15   The IJ was entitled to treat this omission as an inconsistency,

16   particularly       given   that    Zhao’s   work   for   Falun   Gong   was

17   purportedly rooted in the sterilization threat.             Xiu Xia Lin,

18   534 F.3d at 166 n.3 (an “omission in a document submitted to

19   corroborate        the   applicant’s      testimony,     like    a   direct

20   inconsistency between one or more of those forms of evidence,

21   can serve as a proper basis for an adverse credibility

22   determination”).         The IJ was not compelled to credit Zhao’s

23   explanation for the omission: that he thought his divorce was

                                           5
1    not important.      See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

2    2005) (explaining that the agency is not required to credit an

3    explanation that is merely plausible or possible).

4        The      lack    of   responsiveness,   inconsistencies,    and

5    implausibilities of Zhao’s testimony cast doubt on whether he

6    actually distributed Falun Gong fliers or was persecuted for

7    doing so.    His asylum, withholding of removal, and CAT claims

8    were based on the same factual predicate, and so the adverse

9    credibility determination was dispositive as to all three.      See

10   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

11       For the foregoing reasons, the petition for review is

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

13   that the Court previously granted in this petition is VACATED,

14   and any pending motion for a stay of removal in this petition

15   is DISMISSED as moot.      Any pending request for oral argument

16   in this petition is DENIED in accordance with Federal Rule of

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

18   34.1(b).

19                                    FOR THE COURT:
20                                    Catherine O=Hagan Wolfe, Clerk




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