    09-4212-ag
    Zhang v. Holder
                                                                                   BIA
                                                                              Nelson, IJ
                                                                          A 094 927 000
                        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.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 9 th day of June, two thousand ten.

    PRESENT:
             GUIDO CALABRESI,
             RICHARD C. WESLEY,
             PETER W. HALL,
                    Circuit Judges.
    _______________________________________

    YU ZHANG,
                      Petitioner,

                       v.                                  09-4212-ag
                                                           NAC
    ERIC H. HOLDER, JR., U.S. ATTORNEY
    GENERAL,
             Respondent.
    ______________________________________
    FOR PETITIONER:                  Guang Jun Gao, Flushing, New York.

    FOR RESPONDENT:                  Tony West, Assistant Attorney
                                     General; Carl McIntyre, Assistant
                                     Director; Steven F. Day, Trial
                                     Attorney, Office of Immigration
                                     Litigation, Washington D.C.
     UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.

     Petitioner Yu Zhang, a native and citizen of China,
seeks review of the September 11, 2009, order of the BIA
affirming the December 20, 2007, decision of Immigration
Judge (“IJ”) Barbara A. Nelson denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Yu Zhang, No. A
094 927 000 (B.I.A. Sept. 11, 2009), aff’g No. A 094 927 000
(Immig. Ct. N.Y. City Dec. 20, 2007). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.

     Under the circumstances of this case, we review both
the IJ’s and the BIA’s decisions. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009).

     Substantial evidence supports the agency’s adverse
credibility determination. Zhang argued that his failure to
mention his alleged arrest in his asylum application was too
insignificant to undermine his credibility. Under the REAL
ID Act, however, an IJ may rely on any inconsistency between
an applicant’s oral and written statements when making an
adverse credibility determination. See 8 U.S.C. §
1158(b)(1)(B)(iii). However, the discrepancy the IJ
identified was not insignificant. To the contrary, Zhang’s
failure to mention his arrest undermines the very basis of
his claim: that the Chinese government seeks to punish him
for his resistance to the family planning policy. The IJ
also properly noted that none of the letters from Zhang’s
father or sister mentioned that Zhang was ever arrested or
detained. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 341 (2d Cir. 2006) (holding that an asylum
applicant’s failure to corroborate his testimony may bear on
credibility when the absence of corroboration makes him
unable to rehabilitate testimony that has already been
called into question). The IJ also considered and
reasonably rejected Zhang’s argument that “the term ‘arrest’
can be rendered in so many different ways in Chinese” that
he could “be easily thrown into confusion” about its


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meaning. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005) (holding that the agency need not credit an
applicant’s explanations for inconsistent testimony unless
those explanations would compel a reasonable fact-finder to
do so).

     Although Zhang also argues that his asylum application
may have been incorrectly prepared due to poor translation
or “by some legal assistant who might have carelessly
ignored some details while preparing” the application, he
presents no evidence in support of this argument and, in any
event, he did not raise it before the BIA. See Foster v.
INS, 376 F.3d 75, 78 (2d Cir. 2004) (holding that
petitioners must raise to the BIA the specific issues they
later raise in this Court).

     Ultimately, the agency’s credibility determination was
supported by substantial evidence. See 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167. Therefore,
it did not err in denying Zhang’s application for asylum and
withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
156 (2d Cir. 2006).

     Finally, contrary to Zhang’s argument that the IJ
employed a “heightened standard” in evaluating his CAT
claim, the IJ applied the correct standard in determining
that Zhang failed to submit any “particularized evidence”
that it was “more likely than not that he would be tortured
if returned to China.” See Mu-Xing Wang v. Ashcroft, 320
F.3d 130, 143-44 (2d Cir. 2003) (holding that the relevant
inquiry is whether someone in the petitioner’s “particular
alleged circumstances” is more likely than not to be
tortured); see also 8 C.F.R. § 208.16(c)(4).

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted is VACATED, and
any pending motion for a stay of removal is DISMISSED as
moot. Any pending request for oral argument is DENIED in
accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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