         11-3253-ag
         Zhang v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A088 794 103
                            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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 29th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       QIN ZHANG,
14                Petitioner,
15
16                         v.                                   11-3253-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Lee Ratner, Law Offices of Michael
24                                     Brown, New York, N.Y.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; M. Jocelyn Lopez Wright,
28                                     Senior Litigation Counsel; Lori B.
29                                     Warlick, 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 DENIED.

 5       Qin Zhang, a native and citizen of the People’s

 6   Republic of China, seeks review of a July 26, 2011, decision

 7   of the BIA affirming the March 11, 2010, decision of

 8   Immigration Judge (“IJ”) Javier Balasquide, which denied his

 9   application for asylum, withholding of removal and relief

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

11   Zhang, No. A088 794 103 (B.I.A. July 26, 2011), aff’g No.

12   A088 794 103 (Immig. Ct. N.Y. City Mar. 11, 2010).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.     See Yan
17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

18   applicable standards of review are well-established.
19   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
20   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).   Zhang challenges

21   the agency’s denial of his application for asylum and

22   withholding of removal.

23


                                  2
 1          For asylum applications, such as Zhang’s, governed by

 2   the amendments made to the Immigration and Nationality Act

 3   by the REAL ID Act of 2005, the agency may, considering the

 4   totality of the circumstances, base a credibility finding on

 5   an asylum applicant’s “demeanor, candor, or responsiveness,”

 6   the plausibility of his account, and inconsistencies in his

 7   statements, without regard to whether they go “to the heart

 8   of the applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii);

 9   see Xiu Xia Lin, 534 F.3d at 167.    We “defer . . . to an

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

11   the circumstances, it is plain that no reasonable fact-

12   finder could make” such a ruling.    Xiu Xia Lin, 534 F.3d at

13   167.

14          Here, substantial evidence supports the IJ’s adverse

15   credibility determination given the material omissions in

16   Zhang’s asylum application.    See 8 U.S.C.

17   § 1158(b)(1)(B)(iii); Xian Tuan Ye v. Dep’t of Homeland

18   Security, 446 F.3d 289, 294-95 (2d Cir. 2006); Xiu Xia Lin,

19   534 F.3d at 166 n.3 (explaining that inconsistencies and

20   omissions are “functionally equivalent”).     As the agency

21   observed, Zhang testified that the Chinese government

22   continued to search for him after he left China and issued a

23   summons to his mother, and that his practice of Falun Gong

                                    3
 1   is ongoing in the United States, but his asylum application

 2   omitted this information.   The agency reasonably declined to

 3   credit Zhang’s vague and non-responsive explanations for

 4   these omissions.    See Majidi v. Gonzales, 430 F.3d 77, 80-81

 5   (2d Cir. 2005) (determining that the agency need not credit

 6   an applicant’s explanations for inconsistent testimony

 7   unless those explanations would compel a reasonable fact-

 8   finder to do so).

 9       The adverse credibility determination is further

10   supported by Zhang’s failure to corroborate the portions of

11   his claim that he omitted from his asylum application.     See

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

13   finding that Zhang failed to provide adequate corroboration,

14   the agency reasonably afforded little evidentiary weight to

15   the copy of a summons Zhang provided with his application

16   because it was not authenticated pursuant to the

17   regulations, 8 C.F.R. § 1287.6, and because it lacked a

18   proper foundation needed for authentication.    See Qin Wen

19   Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007); Xiao Ji

20   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.

21   2006).

22       Accordingly, given the omissions and the lack of

23   corroborating evidence to rehabilitate Zhang’s testimony,


                                    4
 1   substantial evidence supports the agency’s adverse

 2   credibility determination, and we defer to that finding.

 3   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

 4   167.    Because the only evidence of a threat to Zhang’s life

 5   or freedom depended upon his credibility, the adverse

 6   credibility determination in this case necessarily precludes

 7   success on his claims for asylum and withholding of removal.

 8   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).    We

 9   decline to reach the agency’s alternate burden of proof

10   finding as the adverse credibility determination is

11   dispositive.

12          For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

15   is VACATED, and any pending motion for a stay of removal in

16   this petition is DISMISSED as moot. Any pending request for

17   oral argument in this petition is DENIED in accordance with

18   Federal Rule of Appellate Procedure 34(a)(2), and Second

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22
23




                                    5
