     16-1679
     Zhu v. Sessions
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A200 930 260

                            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   18th day of August, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            ROBERT D, SACK,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   XUE HUA ZHU,
14            Petitioner,
15
16                     v.                                            16-1679
17                                                                   NAC
18   JEFFERSON B. SESSIONS, III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gerald Karikari, New York, NY.
24
25   FOR RESPONDENT:                     Joyce R. Branda, Acting Assistant
26                                       Attorney General; Bernard A. Joseph,
27                                       Senior Litigation Counsel; Jason
28                                       Wisecup, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
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 Hua Zhu, a native and citizen of the People’s

6    Republic of China, seeks review of an April 29, 2016, decision

7    of the BIA, affirming a November 25, 2014, decision of an

8    Immigration Judge (“IJ”) denying Zhu’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).    In re Xue Hua Zhu, No. A200 930 260 (B.I.A.

11   Apr. 29, 2016), aff’g No. A200 930 260 (Immig. Ct. N.Y. City

12   Nov. 25, 2014).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed both

15   the IJ’s and the BIA’s opinions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).    The     applicable   standards   of   review   are   well

18   established.    See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

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

20       For asylum applications like Zhu’s, governed by the REAL

21   ID Act, the agency may, “[c]onsidering the totality of the

22   circumstances,” base a credibility finding an applicant’s

23   “demeanor, candor, or responsiveness,” and on inconsistencies

                                      2
1    in an applicant’s statements and evidence, “without regard to

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

3    applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

4    Lin, 534 F.3d at 163-64.   “We defer . . . to an IJ’s credibility

5    determination unless, from the totality of the circumstances,

6    it is plain that no reasonable fact-finder could make such an

7    adverse credibility ruling.”     Xiu Xia Lin, 534 F.3d at 167.

8         The agency reasonably relied on the following

9    inconsistencies to render an adverse credibility

10   determination.     Zhu testified inconsistently concerning the

11   date of her arrest—an event central to her claim of persecution.

12   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xian Tuan Ye v. Dep’t of

13   Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“[A] material

14   inconsistency in an aspect of [an applicant’s] story that served

15   as an example of the very persecution from which he sought

16   asylum . . . afforded substantial evidence to support the

17   adverse credibility finding.”).      And the agency was not

18   compelled to credit her explanation of nervousness given that

19   this was the sole basis for her claim of past persecution.         See

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

21   must do more than offer a plausible explanation for his

22   inconsistent statements to secure relief; he must demonstrate

23   that a reasonable fact-finder would be compelled to credit his

                                     3
1    testimony.” (internal quotation marks omitted)).

2        The adverse credibility determination is further bolstered

3    by inconsistencies concerning Zhu’s attendance at a registered

4    government church in China: she gave three different dates for

5    when she stopped attending.   See Xiu Xia Lin, 534 F.3d at 167.

6    The church certificate listing her as a member of that church

7    as of 2010 did not resolve the inconsistency.   See Majidi, 430

8    F.3d at 80.

9        Zhu was also inconsistent about her church attendance in

10   the United States.     A letter from the church confirmed her

11   attendance on Wednesdays, but Zhu testified that she regularly

12   attended on Mondays.    The agency was not compelled to credit

13   Zhu’s explanations that she picked the letter up on a Wednesday

14   and that she occasionally attended church on Wednesdays.   Id.

15   Zhu’s dismissal of this inconsistency as trivial is misplaced.

16   The agency may rely on any inconsistency and this one goes to

17   her practice of Christianity, which is central to her fear of

18   religious persecution.    See 8 U.S.C. § 1101(a)(42); see Xiu

19   Xia Lin, 534 F.3d at 167; Xian Tuan Ye, 446 F.3d at 295.

20       The agency also reasonably relied on an inconsistency

21   concerning a hotel receipt.   Zhu’s testimony conflicted with

22   the receipt and, given her repeated emphasis that it was a

23   weekend stay, the agency was not compelled to credit her

                                    4
1    explanation that she made a mistake.       See Majidi, 430 F.3d at

2    80.    Contrary to Zhu’s position, “an IJ may rely on any

3    inconsistency or omission in making an adverse credibility

4    determination,”     where,   as   here,   “the   ‘totality   of   the

5    circumstances’ establishes that an asylum applicant is not

6    credible.”    Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C.

7    § 1158(b)(1)(B)(iii)).

8          The adverse credibility determination is further supported

9    by the IJ’s demeanor finding, to which we defer, particularly

10   where, as here, the record reflects Zhu’s difficulty answering

11   questions about her arrest.       Majidi, 430 F.3d at 81 n.1; cf.

12   Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

13   2006) (“We can be still more confident in our review of

14   observations about an applicant’s demeanor where, as here, they

15   are    supported     by   specific    examples    of   inconsistent

16   testimony.”).      Zhu now suggests that this evasiveness was a

17   product of the interpretation, alleging that her best dialect

18   is Foo Chow, but the hearing was in Mandarin.          This argument

19   is not properly before us because Zhu did not raise it before

20   the IJ or BIA, Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

21   123-25 (2d Cir. 2007), and the transcript does not reflect

22   interpretation difficulty.

23         Finally, the agency did not err in determining that Zhu’s

                                       5
1    evidence did not rehabilitate her testimony about either her

2    past harm or her practice of Christianity.         Biao Yang v.

3    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

4    failure to corroborate [her] . . . testimony may bear on

5    credibility, because the absence of corroboration in general

6    makes an applicant unable to rehabilitate testimony that has

7    already been called into question.”).     The fine receipt from

8    China lists Zhu as the payer, but Zhu testified that her father

9    paid the fine.   And Zhu’s pastors did not testify and thus could

10   not resolve the inconsistency relating to her church attendance

11   in the United States.      Finally, Zhu mischaracterizes what

12   transpired at the hearing regarding a witness.       Her counsel

13   withdrew the witness, who appears to have been offered only to

14   corroborate Zhu’s entry into the United States—a point not at

15   issue—because the witness had not provided a necessary waiver.

16       Given the multiple inconsistencies, the demeanor finding,

17   and the lack of rehabilitative corroborating evidence, the

18   totality of the circumstances supports the adverse credibility

19   determination.   Xiu Xia Lin, 534 F.3d at 167.     The adverse

20   credibility determination is dispositive of asylum,

21   withholding of removal, and CAT relief because all three forms

22   of relief are based on the same factual predicate.      Paul v.

23   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

                                     6
1        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

8    34.1(b).

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




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