         13-2387
         Zhu v. Holder
                                                                                       BIA
                                                                                   Segal, IJ
                                                                               A200 836 072
                           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 9th day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                DENNY CHIN,
10                SUSAN L. CARNEY,
11                     Circuit Judges.
12       _____________________________________
13
14       TONG ZHU,
15                       Petitioner,
16
17                       v.                                     13-2387
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Michael A. O. Brown, New York, NY.
25
26       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
27                                      General; David V. Bernal, Assistant
28                                      Director; Yedidya Cohen, Trial
29                                      Attorney, Office of Immigration
30                                      Litigation, United States Department
31                                      of Justice, 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       Petitioner Tong Zhu, a native and citizen of China,

 6   seeks review of a May 28, 2013, order of the BIA, affirming

 7   the January 5, 2012, decision of an Immigration Judge

 8   (“IJ”), which denied asylum, withholding of removal, and

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

10   Tong Zhu, No. A200 836 072 (B.I.A. May 28, 2013), aff’g No.

11   A200 836 072 (Immig. Ct. New York City Jan. 5, 2012).   We

12   assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

14       Under the circumstances of this case, we review the

15   decisions of both the IJ and the BIA.   See Yun-Zui Guan v.

16   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

17   The applicable standards of review are well established.

18   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

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

20       For applications such as Zhu’s, which are governed by

21   the REAL ID Act, the agency may base a credibility finding

22   on an applicant’s demeanor, the plausibility of his account,

23   and inconsistencies in his statements, without regard to

                                  2
 1   whether they go “to the heart of the applicant’s claim.”

 2   8 U.S.C. § 1158(b)(1)(B)(iii).      We “defer . . .to an IJ’s

 3   credibility determination unless, from the totality of the

 4   circumstances, it is plain that no reasonable fact-finder

 5   could make such an adverse credibility ruling.”      Xiu Xia

 6   Lin, 534 F.3d at 167.

 7       Contrary to Zhu’s assertions, the agency reasonably

 8   determined that he was not credible due to inconsistencies

 9   among his airport interview, application, and testimony

10   concerning the basis of his asylum claim.      See 8 U.S.C.

11   § 1158(b)(1)(B)(iii); see also Ramsameachire v. Ashcroft,

12   357 F.3d 169, 181 (2d Cir. 2004).      Indeed, Zhu stated during

13   his airport interview that he feared returning to China

14   because he was learning to cook from a chef who had been

15   arrested for teaching an illegal religion, but indicated in

16   his application and testimony that he left China because he

17   suffered and feared persecution for his involvement with an

18   underground church.     While Zhu contended before the IJ that

19   he had lied because he was afraid that the immigration

20   officer would contact the Chinese Consulate, the IJ was not

21   required to credit his explanation given that Zhu was not

22   asked whether he wished to contact the Chinese Consulate


                                     3
 1   until after he stated his reason for seeking asylum.     See

 2   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

 3   Because the IJ considered and rejected Zhu’s explanation,

 4   she did not err in basing her adverse credibility

 5   determination on Zhu’s airport-interview statements.     See

 6   Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005)(per

 7   curiam) (finding, under pre-REAL ID Act case law, that IJ

 8   erred in basing adverse credibility determination on

 9   inconsistencies between applicant’s airport-interview

10   statements and later testimony without first considering

11   alien’s explanations for the inconsistencies); see also Guan

12   v. Gonzales, 432 F.3d 391, 398 (2d Cir. 2005).   Lastly,

13   Zhu’s contention that a snakehead coerced him into making

14   false statements during his airport interview is both

15   unexhausted and not supported by the record, given that Zhu

16   did not comply with the snakehead’s instruction to state

17   that he was persecuted for attending an underground church.

18   See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124

19   (2d Cir. 2007) (recognizing that issue exhaustion is a

20   mandatory, although not jurisdictional, requirement);

21   Majidi, 430 F.3d at 80-81.

22



                                  4
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 DENIED 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
12




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