     18-108
     Zhu v. Barr
                                                                                  BIA
                                                                           Vomacka, IJ
                                                                          A206 071 167
                        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 28th day of January, two thousand twenty.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   DAOPING ZHU,
14
15                       Petitioner,
16
17                 v.                                            18-108
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21
22                 Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                   Joan Xie, Esq., New York, NY.
26
27   FOR RESPONDENT:                   Joseph H. Hunt, Assistant
28                                     Attorney General; Linda S.
29                                     Wernery, Assistant Director;
30                                     Gerald M. Alexander, Trial
31                                     Attorney, Office of Immigration
32                                     Litigation, United States
1                                Department of Justice, Washington,
2                                DC.
3
4           UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8           Petitioner Daoping Zhu, a native and citizen of China,

9    seeks review of a December 29, 2017, decision of the BIA

10   affirming an April 24, 2017, decision of an Immigration Judge

11   (“IJ”) denying Zhu’s application for asylum, withholding of

12   removal, and relief under the Convention Against Torture

13   (“CAT”).     In re Daoping Zhu, No. A 206 071 167 (B.I.A. Dec.

14   29, 2017), aff’g No. A 206 071 167 (Immig. Ct. N.Y. City Apr.

15   24, 2017).      We assume the parties’ familiarity with the

16   underlying facts and procedural history in this case.

17          We have reviewed the IJ’s decision as modified by the

18   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

19   520, 522 (2d Cir. 2005).    The applicable standards of review

20   are well established.    See 8 U.S.C. § 1252(b)(4)(B); Hong Fei

21   Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing

22   adverse credibility determinations for substantial evidence).

                                    2
1    “Considering        the   totality      of    the    circumstances,    and   all

2    relevant factors, a trier of fact may base a credibility

3    determination on . . . the inherent plausibility of the

4    applicant’s     .    .    .   account,       the    consistency    between   the

5    applicant’s . . . written and oral statements . . . , the

6    internal     consistency        of    each    such    statement,    [and]    the

7    consistency of such statements with other evidence of record

8    . . . without regard to whether an inconsistency, inaccuracy,

9    or falsehood goes to the heart of the applicant’s claim . .

10   . .”    8 U.S.C. § 1158(b)(1)(B)(iii).                 “We defer . . . to an

11   IJ’s credibility determination unless, from the totality of

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

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

14   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

15   Gao, 891 F.3d at 76.           Because Zhu’s asylum claim is based on

16   his involvement with the U.S. Committee of the Democratic

17   Party of China (“DPC”) while in the United States, he was

18   required to “make some showing that authorities in [China]

19   are either aware of his activities or likely to become aware

20   of his activities.”           Hongsheng Leng v. Mukasey, 528 F.3d 135,

21   143    (2d   Cir.    2008).          Substantial     evidence     supports   the
                                              3
1    agency’s determination that Zhu was not credible as to his

2    claim that he will be persecuted in China on account of his

3    support for the DPC while in the United States.

4        The agency reasonably relied on several inconsistencies

5    among Zhu’s testimony, application, and documentary evidence

6    concerning Chinese officials’ alleged contacts with his wife.

7    Zhu claimed that Chinese officials visited his wife multiple

8    times to question her about his activities in the United

9    States and that she was detained and interrogated overnight

10   on one occasion.     But his wife’s letter only referenced one

11   visit.   There were further inconsistencies, in that (1) his

12   wife indicated both that the visit occurred shortly before

13   she wrote the letter in January 2017 and that she believed

14   she had been under surveillance for months following the visit

15   and (2) Zhu testified both that such visits usually occurred

16   in June near the anniversary of the Tiananmen Square protests

17   and that the incident occurred in January because the visits

18   often    coincided   with   the   Chinese   New   Year.    These

19   inconsistencies cast doubt on a central component of Zhu’s

20   claim: whether Chinese officials were in fact aware of his

21   Democratic activities in the United States.        See Hongsheng
                                       4
1    Leng, 528 F.3d at 143.            Zhu did not provide a compelling

2    explanation      for     these   inconsistencies.       See     Majidi        v.

3    Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

4    do   more   than   offer     a   plausible   explanation       for    .   .   .

5    inconsistent statements to secure relief; he must demonstrate

6    that a reasonable fact-finder would be compelled to credit

7    his testimony.” (internal quotations omitted)).

8         The adverse credibility determination is bolstered by

9    the IJ’s findings that the plausibility of Zhu’s claim was in

10   question.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan

11   v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (“It is well

12   settled that, in assessing the credibility of an asylum

13   applicant’s testimony, an IJ is entitled to consider whether

14   the applicant’s story is inherently implausible.”).                  The IJ’s

15   findings are sufficiently tethered to the record.                See Siewe

16   v.   Gonzales,     480    F.3d   160,    168–69   (2d   Cir.    2007)     (An

17   implausibility finding that is based on “speculation that

18   inheres in inference is not ‘bald’ if the inference is made

19   available to the factfinder by record facts, or even a single

20   fact, viewed in the light of common sense and ordinary

21   experience.”).      First, Zhu’s wife’s letter alleging that she
                                          5
1    was interrogated was suspect as the letter arrived just weeks

2    before   the   merits    hearing,   did    not   corroborate    earlier

3    visits, and did not mention the Chinese New Year despite Zhu’s

4    explanation that his wife sent the letter as a holiday

5    greeting.      Second,   Zhu    obtained   English   translations    of

6    notarial certificates from China of his marriage certificate

7    and his, his wife’s, and his son’s birth certificates in 2011.

8    Despite having obtained the certificate in 2011, which was

9    two years before he joined the DPC, when questioned about it,

10   he initially explained that he acquired the documents to

11   prepare an asylum case.         The timing of this evidence thus

12   indicated that Zhu may have fabricated his claim.              See Y.C.

13   v. Holder, 741 F.3d 332, 338 (2d Cir. 2013) (expressing

14   concern about ease of manufacturing claims based on political

15   activities undertaken only in the United States).

16        The agency also reasonably found that Zhu’s remaining

17   documentary evidence failed to rehabilitate his credibility.

18   “An applicant’s failure to corroborate his or her testimony

19   may bear on credibility, because the absence of corroboration

20   in   general   makes     an    applicant   unable    to   rehabilitate

21   testimony that has already been called into question.”             Biao
                                         6
1    Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).                      The

2    photographs     purportedly        showing       Zhu’s    DPC    activities

3    conflicted with his testimony regarding the date of his

4    swearing in and were suspect because photographs purportedly

5    taken only a few apart hours showed him wearing different

6    clothing.

7        Given these problems with Zhu’s testimony and documents,

8    substantial     evidence     supports          the   adverse    credibility

9    determination.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

10   Lin, 534 F.3d at 167.         Although the agency relied on two

11   inconsistencies       that   are    not    supported      by    the   record

12   concerning the contents of DPC flyers and Zhu’s discovery of

13   the DPC, we determine that those errors do not require remand.

14   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339

15   (2d Cir. 2006) (holding that remand is futile when this Court

16   can “confidently predict” that the agency would reach the

17   same decision absent any errors).                The adverse credibility

18   determination    is    dispositive        of    asylum,    withholding   of

19   removal, and CAT relief because all three forms of relief are

20   based on the same factual predicate.                 See Paul v. Gonzales,

21   444 F.3d 148, 156-57 (2d Cir. 2006).
                                          7
1       For the foregoing reasons, the petition for review is

2   DENIED.   All pending motions and applications are DENIED and

3   stays VACATED.

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




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