     16-2928
     Zhang v. Sessions
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A200 923 620

                              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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 1st day of June, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            RAYMOND J. LOHIER, JR.,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   TI QIANG ZHANG,
14            Petitioner,
15
16                       v.                                      16-2928
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Richard Tarzia, Belle Mead, NJ.
24
25   FOR RESPONDENT:                       Chad A. Readler, Acting
26                                         Assistant Attorney General;
27                                         Jessica E. Burns, Senior
28                                         Litigation Counsel; Juria L.
29                                         Jones, Trial Attorney, Office of
30                                         Immigration Litigation, United
31                                         States Department of Justice,
32                                         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

 4   is DENIED.

 5       Petitioner Ti Qiang Zhang, a native and citizen of the

 6   People’s Republic of China, seeks review of an August 9,

 7   2016, decision of the BIA affirming an August 21, 2015,

 8   decision of an Immigration Judge (“IJ”) denying Zhang’s

 9   application for asylum, withholding of removal, and relief

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

11   Qiang Zhang, No. A200 923 620 (B.I.A. Aug. 9, 2016), aff’g

12   No. A200 923 620 (Immig. Ct. N.Y. City Aug. 21, 2015). 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 have reviewed

16   the IJ’s decision as modified by the BIA and reach only the

17   agency’s adverse credibility determination.          See Xue Hong

18   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

19   2005).       The   applicable   standards   of   review   are   well

20   established.       See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

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




                                       2
1        The governing REAL ID Act credibility standard provides

2    that the agency must “[c]onsider[] the totality of the

3    circumstances,” and may base a credibility finding on an

4    applicant’s “demeanor, candor, or responsiveness,” the

5    plausibility of his account, and inconsistencies or

6    omissions in his or his witness’s statements, “without

7    regard to whether” they go “to the heart of the applicant’s

8    claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

9    F.3d at 163-64, 166-67. “We defer . . . to an IJ’s

10   credibility determination unless . . . it is plain that no

11   reasonable fact-finder could make such an adverse

12   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167. For the

13   reasons that follow, we conclude that substantial evidence

14   supports the agency’s finding that Zhang was not credible.

15       Initially, as the Government observes, Zhang has waived

16   review of the agency’s reliance on his omission from his

17   application of the police’s search for him and his post-

18   detention medical treatment by failing to challenge those

19   findings in his brief. Norton v. Sam’s Club, 145 F.3d 114,

20   117 (2d Cir. 1998) (“Issues not sufficiently argued in the

21   briefs are considered waived and normally will not be

22   addressed on appeal.”). These omissions therefore stand as


                                   3
1    appropriate bases for the credibility determination. Xiu

2    Xia Lin, 534 F.3d at 166-67 & n.3 (“An inconsistency and an

3    omission are . . . functionally equivalent” for credibility

4    purposes.).

5        The agency also reasonably based the credibility

6    determination on Zhang’s inconsistent testimony about when

7    his arrest, release from detention, and search by police

8    occurred. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

9    F.3d at 167 (“[A]n IJ may rely on any inconsistency . . .

10   in making an adverse credibility determination as long as

11   the ‘totality of the circumstances’ establishes that an

12   asylum applicant is not credible.”). Although a discrepancy

13   in dates need not be fatal if “minor and isolated,” Diallo

14   v. INS, 232 F.3d 279, 288 (2d Cir. 2000), Zhang’s date

15   discrepancies were extensive and called into question his

16   familiarity with the timeline of his claim. The agency was

17   not required to credit Zhang’s explanation that he was

18   nervous. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

19   2005) (“A petitioner must do more than offer a plausible

20   explanation for his inconsistent statements to secure

21   relief; he must demonstrate that a reasonable fact-finder




                                  4
1    would be compelled to credit his testimony.” (internal

2    quotation marks omitted)).

3        The credibility determination is bolstered by the IJ’s

4    observations of Zhang’s demeanor. See Li Zu Guan v. INS, 453

5    F.3d 129, 140 (2d Cir. 2006). The record reflects that Zhang

6    was nonresponsive to questions on cross examination.     While

7    Zhang contends that this characterization is arguable, we do

8    not second guess the IJ’s fact finding unless the record

9    compels a different conclusion.   Siewe v. Gonzales, 480 F.3d

10   160, 167-69 (2d Cir. 2007).

11       Finally, Zhang’s challenges to the IJ’s treatment of his

12   corroborating evidence are misplaced.       Although Zhang is

13   correct that the IJ failed to notify Zhang of his need to lay

14   foundation for his letters from family, this error does not

15   warrant remand.   Li Hua Lin v. U.S. Dep’t of Justice, 453

16   F.3d 99, 106-07 (2d Cir. 2006) (observing that remand is

17   futile if the agency’s “errors are relatively minor in light

18   of the record as a whole”).   We see no realistic possibility

19   that the outcome would be different on remand because the IJ

20   also discounted the letters on the ground that their authors

21   were unavailable for cross examination, which is a reasonable

22   basis that Zhang does not challenge here.    Matter of H-L-H-


                                   5
1    & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010), overruled

2    on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130,

3    133-38 (2d Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324,

4    334 (2d Cir. 2013).       Moreover, “[w]e generally defer to the

5    agency’s     evaluation   of     the       weight   to   be     afforded   an

6    applicant’s documentary evidence.”              Y.C., 741 F.3d at 332.

7    The IJ considered the photographic evidence of Zhang’s Falun

8    Gong    activities   in    the    United       States,    but     reasonably

9    concluded that it did not rehabilitate Zhang’s inconsistent

10   testimony.

11          Given the foregoing inconsistency, omission, demeanor,

12   and corroboration findings, we conclude that the adverse

13   credibility determination is supported by the “totality of

14   the circumstances.” Xiu Xia Lin, 534 F.3d at 167. The

15   adverse credibility determination is dispositive of asylum,

16   withholding of removal, and CAT relief because all three

17   claims are based on the same factual predicate. See Paul v.

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

19          For the foregoing reasons, the petition for review is

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

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

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


                                            6
1   is DISMISSED as moot.   Any pending request for oral argument

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

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

4   34.1(b).

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe
7                               Clerk of Court




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