     17-320
     Zhi Hui Zhu v. Barr
                                                                                  BIA
                                                                              Chew, IJ
                                                                          A205 621 388
                            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 12th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHI HUI ZHU,
14            Petitioner,
15
16                     v.                                        17-320
17                                                               NAC
18   WILLIAM P. BARR,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Joshua E. Bardavid, New York, NY.
24
25   FOR RESPONDENT:                   Chad A. Readler, Principal Deputy
26                                     Assistant Attorney General; Derek
27                                     C. Julius, Assistant Director;
28                                     Patricia E. Bruckner, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States
31                                     Department of Justice, Washington,
32                                     DC.
33
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 DENIED.

5        Petitioner Zhi Hui Zhu, a native and citizen of the

6    People’s Republic of China, seeks review of a January 19,

7    2017, decision of the BIA affirming a February 29, 2016,

8    decision   of   an   Immigration       Judge   (“IJ”)   denying   Zhu’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).            In re Zhi Hui

11   Zhu, No. A 205 621 388 (B.I.A. Jan. 19, 2017), aff’g No. A 205

12   621 388 (Immig. Ct. N.Y. City Feb. 29, 2016).            We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and BIA’s decisions.             Wangchuck v. Dep’t of

17   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).            We review

18   the agency’s factual findings for substantial evidence and

19   its legal conclusions de novo.         Y.C. v. Holder, 741 F.3d 324,

20   332 (2d Cir. 2013).

21        Zhu had the burden of proving a well-founded fear of

22   persecution on account of his political activism.            8 U.S.C.

                                        2
1    §§    1101(a)(42),   1158(b)(1)(B)(i).       To    do   this,    he   was

2    required to show that he subjectively feared persecution and

3    that his fear was objectively reasonable.           Ramsameachire v.

4    Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also Jian

5    Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In

6    the absence of solid support in the record,” an asylum

7    applicant’s fear of persecution is “speculative at best.”).

8    He could meet his burden by establishing either “a reasonable

9    possibility he . . . would be singled out individually for

10   persecution” or “a pattern or practice . . . of persecution

11   of a group of persons similarly situated to [him] on account

12   of . . . political opinion” along with his ”own inclusion in,

13   and     identification    with,       such     group.”     8     C.F.R.

14   § 1208.13(b)(2)(iii);     see   also   Y.C.,      741   F.3d    at    332.

15   Because his claim was based solely on his activities in the

16   United States, Zhu had to show a reasonable possibility that

17   Chinese authorities were either already aware, or likely to

18   become aware, of his political activities in the United

19   States.    Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d

20   Cir. 2008).




                                       3
1        In determining whether an asylum applicant has met his

2    burden of proof, the agency considers the credibility of the

3    testimony and any corroborating evidence.

 4       The testimony of the applicant may be sufficient to
 5       sustain    the     applicant’s    burden     without
 6       corroboration, but only if the applicant satisfies
 7       the trier of fact that the applicant’s testimony is
 8       credible, is persuasive, and refers to specific
 9       facts sufficient to demonstrate that the applicant
10       is a refugee. In determining whether the applicant
11       has met the applicant’s burden, the trier of fact
12       may weigh the credible testimony along with other
13       evidence of record.      Where the trier of fact
14       determines that the applicant should provide
15       evidence that corroborates otherwise credible
16       testimony, such evidence must be provided unless the
17       applicant does not have the evidence and cannot
18       reasonably obtain the evidence.
19
20   8 U.S.C. § 1158(b)(1)(B)(ii).   We first address credibility

21   and conclude that the agency’s decision not to credit Zhu’s

22   testimony is supported by substantial evidence.      See id.

23   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76-

24   77 (2d Cir. 2018); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

25   66 (2d Cir. 2008).

26       Considering the totality of the circumstances, and
27       all relevant factors, a trier of fact may base a
28       credibility determination on the demeanor, candor,
29       or responsiveness of the applicant or witness, the
30       inherent   plausibility   of  the   applicant’s   or
31       witness’s account, the consistency between the
32       applicant’s or witness’s written and oral statements
33       . . ., the internal consistency of each such
34       statement, the consistency of such statements with
35       other evidence of record (including the reports of
                                  4
1          the Department of State on country conditions), and
2          any inaccuracies or falsehoods in such statements,
3          without   regard  to   whether  an   inconsistency,
4          inaccuracy, or falsehood goes to the heart of the
5          applicant’s claim, or any other relevant factor.
6
7    8 U.S.C. § 1158(b)(1)(B)(iii).         “We defer . . . to an IJ’s

8    credibility determination unless . . . it is plain that no

9    reasonable fact-finder could make such an adverse credibility

10   ruling.”    Hong Fei Gao v. Sessions, 891 F.3d at 76, (quoting

11   Xiu   Xia   Lin,     534   F.3d   at   167);    see   also   8 U.S.C.

12   § 1252(b)(4)(B).

13         The   agency   reasonably    determined    that   Zhu’s   brief

14   testimony regarding Chinese officials’ alleged visit to his

15   wife in China was not credible.         The visit came up for the

16   first time on cross examination, and Zhu provided no details

17   about when the visit occurred, when he learned about it, or

18   what officials said to his wife.       See id. § 1158(b)(1)(B)(ii)

19   (requiring credible and persuasive testimony).               Although

20   Zhu’s asylum application was filed in 2012, and Zhu argues

21   that this incident did not occur until after he published an

22   article critical of the Chinese government in 2015, this does

23   not explain why he did not raise the issue earlier.              Zhu

24   never amended or supplemented his asylum application, he did

25   not mention the visit during his direct testimony despite

                                       5
1    being directly asked why he thought the Chinese government

2    was aware of his activities in the United States, and he did

3    not corroborate his allegation with a letter from his wife.

4    See id. § 1158(b)(1)(B)(iii); Biao Yang v. Gonzales, 496 F.3d

5    268,    273   (2d     Cir.      2007)   (“An    applicant’s        failure    to

6    corroborate his or her testimony may bear on credibility,

7    because the absence of corroboration in general makes an

8    applicant unable to rehabilitate testimony that has already

9    been    called    into     question.”);      see    also   Wensheng    Yan    v.

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

11   that, in assessing the credibility of an asylum applicant’s

12   testimony,       an   IJ   is    entitled      to   consider   whether       the

13   applicant’s story is inherently implausible.”).

14          The agency’s negative demeanor finding further supports

15   the     adverse       credibility           ruling.          See      8 U.S.C.

16   § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of Justice,

17   453 F.3d 99, 109 (2d Cir. 2006) (granting particular deference

18   to credibility findings based on an applicant’s demeanor).

19   The hearing transcript confirms the IJ’s findings that Zhu’s

20   testimony about his time in Germany and the articles he

21   authored was evasive and nonresponsive, particularly as he



                                             6
1    did   not    produce   additional   articles   he    claimed    to   have

2    authored.

3          Even assuming that Zhu was credible, the agency did not

4    err in concluding that he failed to meet his burden of showing

5    that the government was actually aware of his activities.

6    “[A] failure to corroborate can suffice, without more, to

7    support a finding that an alien has not met his burden of

8    proof.”      Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d Cir.

9    2009).      Because Zhu could have, but did not, produce a letter

10   from his wife to confirm the visit, the agency did not err in

11   concluding that he failed to meet his burden of proof.                See

12   8 U.S.C. § 1158(b)(1)(B)(ii).

13         Zhu’s only other evidence of awareness was speculative

14   and, thus, insufficient to meet his burden of proof.                  See

15   Jian Xing Huang, 421 F.3d at 129.           Zhu alleged that there

16   were cameras at the protests he participated in and that the

17   Chinese government monitors the internet.           The agency did not

18   err   in    concluding   that   this    evidence    was   insufficient,

19   especially as Zhu published only a single article.             See Y.C.,

20   741 F.3d at 333-34, 336-37.             Nor did the agency err in

21   concluding that Zhu failed to show a pattern or practice of

22   persecution of similarly situated pro-democracy activists:

                                         7
1    the State Department’s 2014 Human Rights Report and a news

2    article discussed the arrests of political dissidents who

3    were active within China, but neither mentioned arrests of

4    United States-based activists who returned to China.           See 8

5    C.F.R. § 1208.13(b)(2)(iii); Y.C., 742 F.3d at 334-35.             The

6    party chairman’s affidavit also provided no objective basis

7    for   Zhu’s   belief   because    it   only   identified    harm    to

8    individuals engaged in dissident activity in China.

9          In sum, the agency reasonably found that Zhu failed to

10   demonstrate a well-founded fear of persecution as needed for

11   asylum because he did not provide credible testimony or any

12   objective evidence that the Chinese government was aware or

13   likely to become aware of his activities.           See Hongsheng

14   Leng, 528 F.3d at 143.    Accordingly, Zhu also failed to meet

15   the higher burdens of proof for withholding of removal and

16   CAT relief.   See Y.C., 741 F.3d at 335.

17         For the foregoing reasons, the petition for review is

18   DENIED.

19                                    FOR THE COURT:
20                                    Catherine O’Hagan Wolfe,
21                                    Clerk of Court




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