         09-4051-ag
         Zhang v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A098 632 728
                            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 25 th day of May, two thousand ten.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                        Circuit Judges.
11       _____________________________________
12
13       HUI ZHANG,
14                Petitioner,
15
16                         v.                                   09-4051-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Sheema Chaudhry, Law Offices of
24                                     Michael Brown, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Linda S. Wernery, Assistant
28                                     Director; Thankful T. Vanderstar,
29                                     Trial Attorney, Office of
1                            Immigration Litigation, United
2                            States Department of Justice,
3                            Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

6    Board of Immigration Appeals (“BIA”) decision, it is hereby

7    ORDERED, ADJUDGED, AND DECREED, that the petition for review

8    is DENIED.

9        Hui Zhang, a native and citizen of the People’s

10   Republic of China, seeks review of an August 31, 2009, order

11   of the BIA, affirming the December 19, 2007, decision of

12   Immigration Judge (“IJ”) Steven R. Abrams, which denied her

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture.       In re Hui Zhang, No.

15   A098 632 728 (B.I.A. Aug. 31, 2009), aff’g No. A098 632 728

16   (Immig. Ct. N.Y. City Dec. 19, 2007).       We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       Under the circumstances of this case, we review the

20   IJ’s decision including the portions not explicitly

21   discussed by the BIA.   See Yun-Zui Guan v. Gonzales, 432

22   F.3d 391, 394 (2d Cir. 2005).       “We review the agency's

23   factual findings, including adverse credibility

24   determinations, under the substantial evidence standard,



                                     2
1    treating them as ‘conclusive unless any reasonable

2    adjudicator would be compelled to conclude to the

3    contrary.’”     Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.

4    2007), quoting 8 U.S.C. § 1252(b)(4)(B).        For applications

5    governed by the REAL ID Act of 2005, the agency may,

6    considering the totality of the circumstances, base a

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

8    plausibility of his or her account, and inconsistencies in

9    his or her statements, regardless of whether they go “to the

10   heart of the applicant’s claim.”     8 U.S.C.

11   § 1158(b)(1)(B)(iii); see also Matter of J-Y-C-, 24 I. & N.

12   Dec. 260, 265 (BIA 2007).     We “defer . . . to an IJ's

13   credibility determination unless, from the totality of the

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

15   could make such an adverse credibility ruling.”        Xiu Xia Lin

16   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

17       Analyzed under the REAL ID Act, the agency’s adverse

18   credibility determination is supported by substantial

19   evidence.     In finding Zhang’s testimony not credible, the IJ

20   relied in part on her demeanor, noting that she was hesitant

21   and, at times, unresponsive.     Because the IJ was in the best

22   position to observe Zhang’s manner while testifying, we


                                     3
1    afford his demeanor finding particular deference.       See Zhou

2    Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004).

3    Indeed, while the record cannot reflect whether Zhang’s

4    testimony was generally hesitant, it reveals at least one

5    instance when Zhang did not respond to a question posed to

6    her, and other instances when her answers were unresponsive.

7        In finding Zhang not credible, the IJ also reasonably

8    relied on a number of inconsistencies in her testimony.        See

9    Xiu Xia Lin, 534 F.3d at 167.       For example, although Zhang

10   testified that she practiced Falun Gong exclusively at the

11   home of her friend, she had previously testified that she

12   practiced at her own house, and later stated that she also

13   practiced in an “empty room” located “in the mountain,” and

14   also “at the park.”   When confronted with this

15   inconsistency, she did not respond.       Moreover, although

16   Zhang initially testified that she learned about Falun Gong

17   in January 1999, but did not begin practicing until January

18   2000, she later testified that she began practicing Falun

19   Gong in January 1999, and that her father observed her

20   practicing Falun Gong in April 1999.       Zhang also

21   contradicted herself as to whether she stopped practicing

22   Falun Gong after her alleged arrest in June 2000, initially


                                     4
1    stating that she “did not give up practicing” after her

2    release, but later stating that she was unable to continue

3    practicing without her books.     Finally, although Zhang

4    initially testified that no one saw her practice Falun Gong

5    in the United States because she practiced alone, she then

6    testified that she practiced together with a “close friend,”

7    who helped her photograph her exercises.

8        Zhang does not attempt to reconcile her testimony, and

9    instead argues that the inconsistencies are minor “under the

10   totality of the circumstances.”     As Zhang acknowledges,

11   however, even minor inconsistencies may form the basis of an

12   adverse credibility determination under the REAL ID Act.

13   See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

14   F.3d at 167.   Moreover, such inconsistencies make us “still

15   more confident in our review of [the IJ’s] observations

16   about an applicant’s demeanor.”     Li Hua Lin v. U.S. Dep’t of

17   Justice, 453 F.3d 99, 109 (2d Cir. 2006).     Because these

18   findings are sufficient to persuade us that the agency’s

19   adverse credibility determination was not in error, see Xiu

20   Xia Lin, 534 F.3d at 167, we need not reach the balance of

21   the IJ’s credibility findings.     See Xiao Ji Chen v. U.S.

22   Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006).

23       Insofar as Zhang’s application for asylum, withholding
                                  5
1    of removal, and CAT relief shared the same factual

2    predicate, the agency’s adverse credibility determination

3    was fatal to each of those claims.    See Paul v. Gonzales,

4    444 F.3d 148, 156 (2d Cir. 2006) (withholding of removal);

5    Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523

6    (2d Cir. 2006) (CAT).

7        For the foregoing reasons, the petition for review is

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

9    removal that the Court previously granted in this petition

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

11   this petition is DISMISSED as moot.

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




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