         13-788
         Zhao v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A098 970 592
                           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 May, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       QIONG ZHAO,
14                Petitioner,
15
16                        v.                                    13-788
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Charles Christophe, Christophe Law
24                                     Group, P.C., New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Nancy E. Friedman, Senior
28                                     Litigation Counsel; Kevin J. Conway,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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 DISMISSED in part and DENIED in part.

 5        Petitioner Qiong Zhao, a native and citizen of China,

 6   seeks review of a February 12, 2013 order of the BIA,

 7   affirming the April 6, 2011 decision of an Immigration Judge

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

 9   removal.   In re Qiong Zhao, No. A098 970 592 (B.I.A. Feb.

10   12, 2013), aff’g No. A098 970 592 (Immig. Ct. New York City

11   Apr. 6, 2011).   We assume the parties’ familiarity with the

12   underlying facts and procedural history in this case.

13        Under the circumstances of this case, we review the

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

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

16   The applicable standards of review are well established.

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

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

19   I.   Pretermission of Asylum

20        Title 8, Section 1158(a)(3) of the United States Code

21   provides that no court shall have jurisdiction to review the

22   agency’s finding that an asylum application was untimely

23   under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

                                    2
 1   changed nor extraordinary circumstances excusing the

 2   untimeliness under § 1158(a)(2)(D).       However, we retain

 3   jurisdiction to review constitutional claims and questions

 4   of law.   8 U.S.C. § 1252(a)(2)(D).

 5       Before the agency, Zhao contended that she established

 6   extraordinary circumstances because she received an ID card

 7   that she did not know was fake.       The agency rejected this

 8   argument because Zhao knew, or should have known, that her

 9   ID card was fake given that she is a sophisticated

10   professional, the ID card stated on both sides that it was a

11   non-U.S. Government issued document, she obtained the card

12   from a room in a little building with a metal gate and a

13   doorbell, and the friend who helped her get it told her not

14   to show it to anyone because most Americans are criminals.

15   On appeal, Zhao’s brief fails to acknowledge our

16   jurisdictional limitation and, instead, continues to

17   “quarrel[] over the correctness of the [agency’s] factual

18   findings [and] justification for [its] discretionary

19   choice[.]”   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

20   F.3d 315, 329 (2d Cir. 2006).       Because she raises no

21   constitutional claim or question of law, we lack

22   jurisdiction to review the pretermission of asylum.


                                     3
 1   II. Credibility-Based Denial of Withholding of Removal

 2       For applications such as Zhao’s, which are governed by

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

 4   on an applicant’s demeanor, the plausibility of her account,

 5   and inconsistencies in her statements, without regard to

 6   whether they go “to the heart of the applicant’s claim.”      8

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

 8   credibility determination unless, from the totality of the

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

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

11   Lin, 534 F.3d at 167.

12       Initially, the adverse credibility determination was

13   reasonably based on Zhao’s inconsistent testimony regarding

14   whether her checkups were mandatory after family planning

15   officials gave her an intrauterine device (“IUD”).   See 8

16   U.S.C. § 1158(b)(1)(B)(iii).   Zhao testified that she had to

17   attend yearly checkups at the family planning office.    When

18   asked how family planning officials failed to discover that

19   her IUD was gone, she testified that she did not have to go

20   every year before reverting to her original testimony that

21   checkups were mandatory.   Zhao challenges the existence of

22   this inconsistency, but it is clearly reflected on the

23   record.

                                    4
 1        The adverse credibility determination was also

 2   properly based on the inconsistency between Zhao’s testimony

 3   that she had not previously applied for immigration benefits

 4   and fraudulent adjustment application claiming that she was

 5   an “artist of extraordinary ability” (Zhao is a nurse).       See

 6   8 U.S.C. § 1158(b)(1)(B)(iii).    The agency found that Zhao

 7   admitted that the signature on the fraudulent adjustment

 8   application was hers.   Zhao disputes this characterization

 9   of the record and claims she was instead referring to her

10   signature on her asylum application.    However, the record

11   reflects that Zhao confirmed that the signatures on both the

12   fraudulent adjustment application and her asylum application

13   were hers.   See Siewe v. Gonzalez, 480 F.3d 160, 168 (2d

14   Cir. 2007) (finding that “support for a contrary

15   inference—even one more plausible or more natural—does not

16   suggest error”).

17       The agency’s adverse credibility determination was also

18   properly based on certain implausibilities in Zhao’s

19   testimony.   She was a trained professional—she worked as a

20   nurse in a government hospital for sixteen years.    But she

21   testified that she did not know about the family planning

22   policy’s pregnancy permit requirement; she did not know

23   whether her hospital performed abortions; and she thought
                                   5
 1   that her non-U.S. Government ID card had given her asylum.

 2   Zhao contends that she adequately explained why she did not

 3   know whether her hospital performed abortions:       she worked

 4   in the cardiology department.       While that explanation is

 5   plausible, the agency was not required to credit it because

 6   it would not necessarily be compelling to a reasonable

 7   fact-finder.   Cf. Majidi v. Gonzales, 430 F.3d 77, 80 (2d

 8   Cir. 2005).

 9       Having questioned Zhao’s credibility, the agency

10   reasonably determined that her failure to provide any

11   medical records, fine receipts, or documentary evidence

12   regarding her family planning violations was suspicious and

13   prevented her from rehabilitating her credibility.        See

14   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per

15   curiam) (recognizing that an applicant’s failure to

16   corroborate her testimony may bear on credibility, either

17   because the absence of particular corroborating evidence is

18   viewed as suspicious, or because the absence of

19   corroboration makes an applicant unable to rehabilitate

20   testimony that has already been called into question).          We

21   therefore find that the agency’s adverse credibility

22   determination is supported by substantial evidence.       Xiu Xia

23   Lin, 534 F.3d at 167.
                                     6
1        For the foregoing reasons, the petition for review is

2    DISMISSED in part and DENIED in part.   As we have completed

3    our review, any stay of removal that the Court previously

4    granted in this petition is VACATED, and any pending motion

5    for a stay of removal in this petition is DISMISSED as moot.

6    Any pending request for oral argument in this petition is

7    DENIED in accordance with Federal Rule of Appellate

8    Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

 9                              FOR THE COURT:
10                              Catherine O’Hagan Wolfe, Clerk
11
12




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