     15-351
     Zhang v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A099 895 703
                           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   4th day of October, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   XUE JIE ZHANG,
14            Petitioner,
15
16                    v.                                             15-351
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Gerald Karikari, New York, New York.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General;
27                                       Jennifer P. Williams, Senior
28                                       Litigation Counsel; Raya Jarawan,
29                                       Trial Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, D.C.
33
34
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 Xue Jie Zhang, a native and citizen of China,

6    seeks review of a January 9, 2015, decision of the BIA affirming

7    a December 6, 2012, decision of an Immigration Judge (“IJ”)

8    denying Zhang’s application for asylum, withholding of removal,

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

10   re Xue Jie Zhang, No. A099 895 703 (B.I.A. Jan. 9, 2015), aff’g

11   No. A099 895 703 (Immig. Ct. N.Y. City Dec. 6, 2012).        We assume

12   the   parties’    familiarity   with    the   underlying   facts     and

13   procedural history in this case.

14         Zhang does not challenge the agency’s denial of his asylum

15   application as untimely, Norton v. Sam’s Club, 145 F.3d 114,

16   117 (2d Cir. 1998), and we generally lack jurisdiction to review

17   that finding, 8 U.S.C. §§ 1158(a)(2), 1252(a)(2)(D) (agency’s

18   finding that asylum application was filed more than one year

19   after   arrival    is   not   subject   to    review   except   as   to

20   constitutional claims and questions of law).           Because the BIA

21   did not reach the IJ’s conclusion that Zhang failed to meet his

22   burden to demonstrate a likelihood of future harm, our review

                                       2
1    is further limited to the adverse credibility determination.

2    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

3    (2d Cir. 2005) (holding that where the BIA affirms in only some

4    respects, we review the IJ’s decision as modified by the BIA’s

5    decision).         As      discussed    below,      the    agency’s     adverse

6    credibility determination is dispositive of both withholding

7    of removal and CAT relief.             Paul v. Gonzales, 444 F.3d 148,

8    156-57 (2d Cir. 2006).            We review credibility determinations

9    under     a    substantial         evidence        standard.       8    U.S.C.

10   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d

11   Cir. 2008).

12          Under the REAL ID Act of 2005, the agency may, in light of

13   “the    totality      of    the    circumstances,”         base   an    adverse

14   credibility determination on an asylum applicant’s “demeanor,

15   candor, or responsiveness,” the plausibility of his account,

16   and inconsistencies in his statements, “without regard to

17   whether”      those     inconsistencies       go    “to   the   heart   of   the

18   applicant’s      claim.”           8   U.S.C.      §§     1158(b)(1)(B)(iii),

19   1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 165.                        Under the

20   “substantial evidence” standard of review, we “defer . . . to

21   an IJ’s credibility determination unless, from the totality of

22   the circumstances, it is plain that no reasonable fact-finder

                                             3
1    could make such an adverse credibility ruling.”               Xiu Xia Lin,

2    534 F.3d at 167.

3           The IJ’s decision makes sufficiently clear that it was

4    deciding the credibility of Zhang’s testimony.               The IJ stated

5    that     Zhang’s    “credibility       overall      is   affected    by    the

6    explanation he has given for the lack of agreement between his

7    testimony of attending Church of Grace since February 2009 and

8    the letter issued by the church.”            He further found that “there

9    were issues raised concerning the respondent’s credibility in

10   general from” Zhang’s two visa applications.               He observed that

11   Zhang’s was a case in which the lack of corroboration “raises

12   issues      about         credibility”--although         credibility       and

13   corroboration are often treated as distinct, here they were

14   intertwined.       Diallo, 232 F.3d at 290 (in making a credibility

15   determination, “the presence of corroborating evidence may be

16   relevant”).

17          At bottom, the IJ doubted that Zhang is a practicing

18   Christian.         That    finding   rests     on   substantial     evidence.

19   Although Zhang testified that he began attending the Church of

20   Grace in February 2009, his only documentary evidence of

21   attendance    was     a    letter    stating    that,    according    to   the

22   registration book, Zhang started attending services on October

                                            4
1    31, 2010.   When asked about the period between February 2009

2    and October 2010, Zhang explained that he did not write his name

3    in the attendance book until October 2010 because he did not

4    know he needed to “put down” his name.   The IJ was not compelled

5    to credit this explanation.    Majidi v. Gonzales, 430 F.3d 77,

6    80 (2d Cir. 2005) (explaining that the agency is not required

7    to credit an explanation that is merely plausible or possible).

8    Moreover, the IJ reasonably deemed the timing to be suspicious:

9    Zhang had submitted his asylum application in June 2010, months

10   before he began documenting his attendance.

11       Other aspects of Zhang’s testimony cast doubt on his

12   practice of Christianity.     Zhang testified that while living

13   in Roanoke, Virginia for two years, he commuted to the Church

14   of Grace in New York for services “once a week” or sometimes

15   “once every two or three weeks.”     When asked why he did not

16   attend services in Roanoke, Zhang responded that his employer

17   told him there were no Chinese churches nearby.           The IJ

18   reasonably rejected this explanation as implausible.     Majidi,

19   430 F.3d at 80.   “The point at which a finding that testimony

20   is implausible ceases to be sustainable as reasonable and,

21   instead, is justifiably labeled ‘speculation,’ in the absence

22   of an IJ’s adequate explanation, cannot be located with

                                     5
1    precision,” but we uphold a finding unless we are “left with

2    the definite and firm conviction that a mistake has been

3    committed.”     Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir.

4    2006) (internal citation and quotation marks omitted).           Here,

5    the   IJ’s question was grounded in common sense: why would a

6    devout Christian travel from Roanoke to New York for services

7    simply because it was “familiar” to him?         The IJ justifiably

8    found that even if one credited the explanation, it undercut

9    Zhang’s credibility further: as the IJ observed, Zhang had no

10   documentary evidence, in the form of bus tickets and the like,

11   to    corroborate      this   explanation.     “[T]he      absence   of

12   corroboration     in   general   makes    an   applicant    unable   to

13   rehabilitate testimony that has already been called into

14   question.”    Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

15   2007).

16         Zhang’s witness list did not fill that gap.       He called none

17   of his 1,000 fellow parishioners from Church of Grace to

18   testify; he explained that “some of them do not have legal

19   status”; but the explanation was partial at best, and the IJ

20   was not compelled to accept it.          The agency also reasonably

21   found that Zhang’s credibility was not rehabilitated by his

22   uncle’s testimony that he went to church with Zhang “once,”

                                       6
1    especially since Zhang had asked him to go in order “to be his

2    witness.”

3        Zhang’s   credibility      was   further   undermined   by   the

4    existence of two earlier visa applications, which suggested

5    that he had been trying to leave China before he ever converted

6    to Christianity.   Zhang denied knowledge of both applications.

7    On direct examination, Zhang testified that he decided to leave

8    China because his underground church was raided by the police.

9    On cross-examination, he denied having previously sought

10   immigration status in the United States.       When the Government

11   presented an alien relative visa application submitted on his

12   behalf by a third party (identified as his father), Zhang said

13   he had never heard of the visa petitioner.            Zhang later

14   confirmed that his mother had remarried, but said that he met

15   his stepfather once, knew him only by the name “Asen,” and did

16   not know where he came from.    The Government presented evidence

17   that Zhang had been denied a student visa based on “suspected

18   fraud,” and that his record had a “hit” for possible marriage

19   fraud.

20       Given the inconsistencies and implausibilities that cast

21   doubt on Zhang’s claim to be a practicing Christian, as well

22   as discrepancies in applications, which call into question his

                                      7
1    reasons for leaving China, the totality of the circumstances

2    supports the adverse credibility determination.       Siewe v.

3    Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).        Because his

4    applications for withholding of removal and CAT relief were

5    based on the same factual predicate (his Christianity), the

6    adverse credibility determination is dispositive of both.

7    Paul, 444 F.3d at 156-57.

8        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

15   34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O=Hagan Wolfe, Clerk




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