     15-2284
     Zhuang v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A098 007 830
                            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   14th day of October, two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            BARRINGTON D. PARKER,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   XIUBING ZHUANG,
14            Petitioner,
15
16                     v.                                            15-2284
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Corey T. Lee, New York, New York.
24
25   FOR RESPONDENT:                    Benjamin C. Mizer, Principal Deputy,
26                                      Assistant Attorney General; Leslie
27                                      McKay, Assistant Director; Margot L.
28                                      Carter, Trial Attorney, Office of
29                                      Immigration Litigation, Civil
30                                      Division, United States Department
31                                      of Justice, 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 is

4    DISMISSED IN PART and DENIED PART.

5        Petitioner Xiubing Zhuang, a native and citizen of the

6    People’s Republic of China, seeks review of a June 22, 2015,

7    decision of the BIA affirming a November 14, 2013, decision of

8    an Immigration Judge (“IJ”) denying Zhuang’s application for

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).    In re Xiubing Zhuang, No. A098 007

11   830 (B.I.A. June 22, 2015), aff’g No. A098 007 830 (Immig. Ct.

12   N.Y. City Nov. 14, 2013).   We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14       As a threshold matter, we lack jurisdiction to review the

15   agency’s denial of Zhuang’s asylum application as untimely.   8

16   U.S.C. § 1158(a)(3).    Although we retain jurisdiction to

17   review “constitutional claims or questions of law,” 8 U.S.C.

18   § 1252(a)(2)(D), the agency’s time bar ruling was based on

19   credibility determinations, which are factual findings not

20   subject to review in this context.   Xiao Ji Chen v. U.S. Dep’t

21   of Justice, 471 F.3d 315, 331 (2d Cir. 2006); Ramsameachire v.



                                    2
1    Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).     Accordingly, we

2    dismiss the petition as to the timeliness ruling.

3        However, we retain jurisdiction to review the adverse

4    credibility determination because it was also the basis for the

5    agency’s denial of withholding of removal and CAT relief.

6        We review the IJ’s and BIA’s credibility ruling for

7    substantial evidence.   Xiu Xia Lin v. Mukasey, 534 F.3d 162,

8    165 (2d Cir. 2008).      The agency may, “[c]onsidering the

9    totality of the circumstances,” base a credibility finding on

10   inconsistencies in an applicant’s statements, so long as they

11   reasonably support an inference that the applicant is not

12   credible.   8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu

13   Xia Lin, 534 F.3d at 167.   “However, we will vacate and remand

14   for new findings if the agency’s reasoning or its fact-finding

15   process was sufficiently flawed.”   Zaman v. Mukasey, 514 F.3d

16   233, 237 (2d Cir. 2008).

17       Zhuang testified before the IJ in September 2013.   He made

18   no claim that he was persecuted in China. His claim of fear of

19   future persecution was based on his practice of Christianity

20   in the United States beginning in 2011.   The basis for his fear

21   is what his wife wrote to him in a letter she signed on June

22   14, 2012. CAR 437.   She wrote that she was arrested on May 7,

                                    3
1    2012, for receiving religious materials sent by her husband.

2    She alleges that she was detained ten days.    She also says, “I

3    did not expect that they would beat me up,” CAR 436, but does

4    not affirmatively state that she was beaten or give any

5    description of mistreatment.   Pertinent to Zhuang’s claim, her

6    letter states that, after police found that the religious

7    materials were sent by her husband, the police said that “they

8    put my husband on blacklist, and that, if her husband returned,

9    “they would arrest him, torture him, and punish him.” Id.

10       The IJ found Zhuang not credible. CAR 84.      However, from

11   the inconsistencies recited by the IJ in support of that

12   finding, it is apparent that what the IJ found not credible was

13   the wife’s letter.   The IJ made no finding that the letter was

14   not written by Zhuang’s wife or was not received.

15       The IJ cited two inconsistencies.         First, Zhuang was

16   inconsistent “about when and how long his wife was able to attend

17   an underground church in China.” CAR 84.   He said her attendance

18   started in October 2011 and continued until May 2013.    He also

19   said her attendance ended in 2012, which she wrote was the year

20   of her arrest.   Then he reverted to 2013 as the ending date.

21   The IJ’s questioning indicated her skepticism that the wife



                                    4
1    would have continued to attend the underground church after her

2    arrest.

3           The    second     inconsistency      concerned      the     alleged

4    mistreatment of Zhuang’s wife.             Zhuang testified that the

5    police poured honey on her body and then put bugs on her body

6    to chew and bite her.      Zhuang’s application made no mention of

7    this mistreatment.       Neither did his wife’s letter or a letter

8    from his mother, which reported the wife’s arrest. The IJ

9    concluded that “this incident was an embellishment added by

10   [Zhuang] after the fact to strengthen his claim.” CAR 86.

11          The IJ also mentioned the fact that Zhuang did not try to

12   obtain from the post office copies of the receipts for the

13   alleged express mailing of religious materials to his wife

14   because he did not think such receipts would be available.

15          Under the deferential standard we are obliged to apply to

16   an     IJ’s   adverse    credibility      finding,   see    8    U.S.C.     §

17   1158(b)(1)(B)(iii), we cannot disturb the finding in this case.

18   Although “asylum applicants are not required to list every

19   incident of persecution on their [applications],” Pavlova v.

20   INS, 441 F.3d 82, 90 (2d Cir.2006), the omission here was the

21   core    of    the   mistreatment,   not    some   minor    detail.        The

22   inconsistency in ending years of the wife’s church attendance

                                         5
1    was also reasonably deemed significant, since the testimony was

2    given just four months after the most recent end of the alleged

3    attendance.

4        For the foregoing reasons, the petition for review is

5    DISMISSED IN PART as to the agency’s ruling regarding the

6    timeliness of the asylum application and DENIED IN PART.      As

7    we have completed our review, any stay of removal that the Court

8    previously granted in this petition is VACATED, and any pending

9    motion for a stay of removal in this petition is DISMISSED as

10   moot.   Any pending request for oral argument in this petition

11   is DENIED in accordance with Federal Rule of Appellate Procedure

12   34(a)(2), and Second Circuit Local Rule 34.1(b).

13                                FOR THE COURT:
14                                Catherine O=Hagan Wolfe, Clerk




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