         11-25-ag
         Zhang v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A088 349 364
                            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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 27th day of January, two thousand twelve.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _______________________________________
12
13       MAOHUA ZHANG,
14                Petitioner,
15
16                         v.                                   11-25-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Lee Ratner, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Thomas B. Fatouros, Senior
27                                     Litigation Counsel; Robert Michael
28                                     Stalzer, Trial Attorney, Office of
29                                     Immigration Litigation, Washington
30                                     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 Maohua Zhang, a native and citizen of China,

 6   seeks review of the December 22, 2010, decision of the BIA

 7   affirming the October 20, 2008, decision of Immigration

 8   Judge (“IJ”) Steven R. Abrams denying his application for

 9   asylum, withholding of removal, and CAT relief.     In re

10   Maohua Zhang, No. A088 349 364 (B.I.A. Dec. 22, 2010), aff’g

11   No. A088 349 364 (Immig. Ct. N.Y. City Oct. 20, 2008).      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 have reviewed

15   both the BIA’s and IJ’s opinions.     Yun-Zui Guan v. Gonzales,

16   432 F.3d 391, 394 (2d Cir. 2005).    The applicable standards

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

18   § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

19   162, 165-66 (2d Cir. 2008) (per curiam).    We “defer . . . to

20   an IJ’s credibility determination unless, from the totality

21   of the circumstances, it is plain that no reasonable fact-

22   finder could make such an adverse credibility ruling.”      Xiu

23   Xia Lin, 534 F.3d at 167.   For asylum applications, like

                                   2
 1   Zhang’s, governed by the REAL ID Act, the agency may,

 2   considering the totality of the circumstances, base a

 3   credibility finding on an asylum applicant’s demeanor, the

 4   plausibility of his account, and inconsistencies in his

 5   statements, without regard to whether they go “to the heart

 6   of the applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii);

 7   Xiu Xia Lin, 534 F.3d at 163-64.

 8       Substantial evidence supports the agency’s

 9   determination that Zhang did not testify credibly regarding

10   his claim that he faced persecution on account of his

11   violation of China’s family planning policy and his

12   involvement with Falun Gong.     In finding Zhang not credible,

13   the agency reasonably relied on inconsistencies in the

14   record.   See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia

15   Lin, 534 F.3d at 163-64, 166-67.     As the agency noted, at

16   the merits hearing, Zhang provided inconsistent testimony as

17   to the date when he was arrested in connection with his

18   ex-wife’s second pregnancy.     When first asked about the

19   family planning violation, Zhang testified that Chinese

20   officials came to his home on November 5, 1994, arrested

21   him, and took him to the “Family Clinic” where he was

22   detained for 11 days. Later, when asked what had happened on

23   November 11, 1994, Zhang responded, “That was when I was

                                     3
 1   arrested by them inside.”     When asked to clarify, Zhang

 2   stated that he “misspoke” and that he was detained for 11

 3   days.   Thus, Zhang's assertion in his brief that he “never

 4   stated that he was arrested on November 11, 1994 during his

 5   testimony and always stated that he was arrested on November

 6   5, 1994,” is refuted by the hearing transcript.

 7       Second, in assessing Zhang’s credibility, the agency

 8   reasonably relied on inconsistencies between the statements

 9   he made during his credible fear interview and the testimony

10   he provided at the merits hearing.     In its decision, the BIA

11   determined that the IJ’s reliance on the credible fear

12   interview was warranted because the record of that interview

13   bore “the indicia of reliability.”     While “adverse

14   credibility determinations based on ‘discrepancies’ with a

15   credible fear interview should be examined with care to

16   ensure that they are not arbitrary,” where the credible fear

17   interview bears the “hallmarks of reliability,” it may

18   appropriately be considered in assessing an alien’s

19   credibility.   Ming Zhang v. Holder, 585 F.3d 715, 725 (2d

20   Cir. 2009); see also Ramsameachire v. Ashcroft, 357 F.3d

21   169, 180-81 (2d Cir. 2004).     Here, the BIA correctly

22   determined that Zhang’s credible fear interview bore

23   sufficient indicia of reliability.     First, the interview was

                                     4
 1   memorialized in a typed document setting forth the questions

 2   asked and Zhang’s responses, and this document was included

 3   as an exhibit in the removal proceedings.    See Ming Zhang,

 4   585 F.3d at 725; Ramsameachire, 357 F.3d at 180 (“verbatim

 5   account or transcript” of the interview more reliable than a

 6   summary).    The record also reflects that the interview was

 7   conducted with the aid of a Mandarin translator, and Zhang’s

 8   responses demonstrated his understanding of the questions

 9   presented during the interview.    See Ming Zhang, 585 F.3d at

10   725.    Further, the asylum officer indicated on his report

11   that, before the interview began, he explained to Zhang “the

12   purpose of the interview, the importance of providing full

13   and accurate testimony, and the fact that [Zhang] could ask

14   for clarification at any point during the proceedings.”

15   Ming Zhang, 585 F.3d at 725.    Finally, Zhang was asked

16   questions that were “clearly designed to elicit a potential

17   basis for an asylum claim,” Ramsameachire, 357 F.3d at 181,

18   such as whether he believed that anyone in China wanted to

19   harm him on account of his religion or political opinion,

20   whether he had previously been harmed in China, and whether

21   he was afraid that he would be harmed if returned to China.

22   See Ming Zhang, 585 F.3d at 725.

23          Given the reliability of these aspects of the credible

                                    5
 1   fear interview, the agency reasonably relied on the

 2   discrepancies between Zhang’s statements at that interview

 3   and his testimony at the merits hearing in assessing his

 4   credibility.   For example, during his credible fear

 5   interview, Zhang stated that he had sold Falun Gong books

 6   “to make a living,” and continued to sell the books after he

 7   was arrested for doing so because “the money was good,” and

 8   detailed the amounts he charged for the books.   At the

 9   merits hearing, however, Zhang testified that he began to

10   “pass out” Falun Gong books after he became reacquainted

11   with an old friend who had started practicing Falun Gong and

12   was impressed with the changes in his friend’s temperament.

13   Zhang further testified that he did not receive payment for

14   passing out the books, but was told that, if he were

15   arrested, he should tell the police that he was selling the

16   books for profit.   When asked why he began passing out the

17   books, Zhang responded that it was because he “ha[d] . . .

18   faith in Falun Gong, I saw them after my friend practiced[,]

19   his health got a lot better.”

20       In his brief, Zhang argues that because “the

21   motivations of an asylum seeker are irrelevant to whether or

22   not relief should be granted,” it is not an inconsistency

23   within the meaning of the REAL ID Act for an asylum seeker

                                     6
 1   to “state different and contradictory motivations for his

 2   actions.”   The case he cites for this proposition, Kyaw Zwar

 3   Tun v. U.S. INS, 445 F.3d 554 (2d Cir. 2006), does not

 4   support this conclusion.   In Tun, we stated that “there is

 5   no requirement that the political activities that give rise

 6   to a risk of persecution be motivated by actual political

 7   beliefs.”   Kyaw Zwar Tun, 445 F.3d at 570-71.   Thus, while

 8   Tun stands for the proposition that a petitioner’s political

 9   beliefs do not have to be genuine to give rise to a risk of

10   persecution, it does not support a conclusion that an

11   alien’s proffered contradictory motivations may not be taken

12   into account in assessing his overall credibility,

13   especially under the REAL ID Act when an adverse credibility

14   determination is made upon the totality of the

15   circumstances.   See Xiu Xia Lin, 534 F.3d at 163-64.

16       Finally, Zhang has not challenged the IJ’s finding that

17   he was not credible based in part on his demeanor, and we

18   give particular deference to that assessment.    See Majidi v.

19   Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).

20       Thus, given the inconsistencies and demeanor finding,

21   the adverse credibility determination is supported by

22   substantial evidence, and we find no error in the agency’s

23   denial of Zhang’s application for asylum, withholding of

                                   7
 1   removal, and CAT relief on credibility grounds as those

 2   claims were all based on his alleged violation of China’s

 3   family planning policy and his purported involvement with

 4   Falun Gong.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

 5   Cir. 2006).

 6       For the foregoing reasons, the petition for review is

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

 8   removal that the Court previously granted in this petition

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

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

11   oral argument in this petition is DENIED in accordance with

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

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17
18




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