     16-1007
     Zhang-Zhou v. Sessions
                                                                                   BIA
                                                                              Cheng, IJ
                                                                           A205 338 164

                              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 11th day of January, two thousand eighteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD C. WESLEY,
10            PETER W. HALL,
11                 Circuit Judges.
12   _____________________________________
13
14   XIE ZHANG-ZHOU,
15            Petitioner,
16
17                     v.                                        16-1007
18                                                               NAC
19   JEFFERSON B. SESSIONS, III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       Keith S. Barnett, New York, NY.
25
26   FOR RESPONDENT:                       Chad A. Readler, Acting
27                                         Assistant Attorney General; Eric
28                                         W. Marsteller, Senior Litigation
29                                         Counsel; Scott M. Marconda,
30                                         Trial Attorney, Office of
31                                         Immigration Litigation, United
32                                         States Department of Justice,
33                                         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

 4   is DENIED.

 5         Petitioner Xie Zhang-Zhou, a native and citizen of the

 6   People’s Republic of China, seeks review of a March 8, 2016,

 7   decision of the BIA affirming an October 27, 2014, decision

 8   of    an   Immigration   Judge     (“IJ”)     denying   Zhang-Zhou’s

 9   application for asylum, withholding of removal, and relief

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

11   Zhang-Zhou, No. A205 338 164 (B.I.A. Mar. 8, 2016), aff’g No.

12   A205 338 164 (Immig. Ct. N.Y. City Oct. 27, 2014).         We assume

13   the   parties’   familiarity     with   the   underlying   facts   and

14   procedural history in this case.

15         Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s decisions “for the sake of

17   completeness.”    Wangchuck v. Dep’t of Homeland Sec., 448

18   F.3d 524, 528 (2d Cir. 2006).         The applicable standards of

19   review are well established.       See 8 U.S.C. § 1252(b)(4)(B);

20   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21         The governing REAL ID Act credibility standard provides

22   that the agency must “[c]onsider[] the totality of the

23   circumstances,” and may base a credibility finding on an

                                       2
1    applicant’s “demeanor, candor, or responsiveness,” the

2    plausibility of his account, and inconsistencies in his or

3    his witness’s statements, “without regard to whether” they

4    go “to the heart of the applicant’s claim.”    8 U.S.C.

5    § 1158(b)(1)(B)(iii); Lin v. Mukasey, 534 F.3d 162, 163-64

 6   (2d Cir. 2008) (per curiam).   “We defer . . . to an IJ’s

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

 8   reasonable fact-finder could make such an adverse

 9   credibility ruling.”   Lin, 534 F.3d at 167.   Further, “[a]

10   petitioner must do more than offer a plausible explanation

11   for his inconsistent statements to secure relief; he must

12   demonstrate that a reasonable fact-finder would be

13   compelled to credit his testimony.”   Majidi v. Gonzales,

14   430 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks

15   omitted).   For the reasons that follow, we conclude that

16   substantial evidence supports the agency’s finding that

17   Zhang-Zhou was not credible.

18       First, the agency reasonably relied on the

19   inconsistencies in and omissions from Zhang-Zhou’s credible

20   fear interview about whether he was arrested, detained, or

21   harmed in China due to his Yiguan Dao religion.     See Lin,

22   534 F.3d at 166-67 & n.3 (“An inconsistency and an omission

23   are, for [credibility] purposes, functionally

                                    3
1    equivalent.”); Zhang v. Holder, 585 F.3d 715, 724-25 (2d

2    Cir. 2009) (observing that the agency may base an adverse

3    credibility determination on inconsistencies arising from a

4    credible fear interview).    Zhang-Zhou’s statements during

5    his credible fear interview directly contradicted the

6    representations in his application and testimony that he

7    was arrested for practicing Yiguan Dao.    At the interview,

 8   he stated he was never harmed in China on account of his

 9   religion and had never been arrested or detained.       The

10   agency reasonably rejected as implausible Zhang-Zhou’s

11   explanation that he did not remember his arrest and

12   detention, when that is why he claims to have fled China in

13   the first place.     See Majidi, 430 F.3d at 80; Zhang, 585

14   F.3d at 725 (“We again reject the notion that a

15   petitioner’s claim that she was nervous and distracted

16   during the credible fear interview automatically undermines

17   or negates its reliability as a source of her

18   statements.”).

19       Second, the agency reasonably relied on the omission of

20   Zhang-Zhou’s arrest, detention, and religious practice from

21   his wife’s letter.     See Lin, 534 F.3d at 167 (affirming

22   adverse credibility determination based, in part, on

23   omissions from corroborating letters).     Zhang-Zhou

                                     4
 1   testified that his wife was aware of his practice of Yiguan

 2   Dao and had paid to secure his release from detention;

 3   however, his wife reported only that she was harassed by

4    the village head and government officials every few days,

5    but did not reference Zhang-Zhou’s practice or arrest.

6    Zhang-Zhou initially explained that his wife did not

7    mention his practice of Yiguan Dao because she was already

 8   aware of it.   The IJ was not compelled to accept Zhang-

 9   Zhou’s explanations for the omission because Zhang-Zhou

10   conceded that the letter was prepared for court and because

11   his responses did not otherwise relate to the omission.

12   See Majidi, 430 F.3d at 80.

13       Third, the agency’s adverse credibility determination

14   is bolstered by the IJ’s observations of Zhang-Zhou’s

15   demeanor.   8 U.S.C. § 1158(b)(1)(B)(iii).   “We give

16   particular deference to credibility determinations that are

17   based on the adjudicator’s observation of the applicant’s

18   demeanor,” Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113

19   (2d Cir. 2005), particularly where, as here, the demeanor

20   finding is directly linked to an inconsistency in the

21   record, Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

22   Cir. 2006) (“We can be still more confident in our review

23   of observations about an applicant’s demeanor where, as

                                   5
 1   here, they are supported by specific examples of

 2   inconsistent testimony.”).

 3       Last, the agency reasonably found Zhang-Zhou’s

 4   corroborating evidence insufficient to rehabilitate his

 5   credibility.    See Yang v. Gonzales, 496 F.3d 268, 273 (2d

6    Cir. 2007) (“An applicant’s failure to corroborate his or

7    her testimony may bear on credibility, because the absence

 8   of corroboration in general makes an applicant unable to

 9   rehabilitate testimony that has already been called into

10   question.”).    Although the parties stipulated that Zhang-

11   Zhou’s witness would have testified that Zhang-Zhou

12   attended a Yiguan Dao temple in the United States, the IJ

13   reasonably found this testimony insufficient to

14   rehabilitate Zhang-Zhou’s claim because it did not relate

15   to his allegations of past harm and there was no

16   documentary evidence linking Zhang-Zhou or his witness to

17   the temple.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

18   F.3d 315, 342 (2d Cir. 2006) (observing that the weight

19   accorded to an applicant’s evidence “lie[s] largely within

20   the discretion of the IJ” (internal quotation marks

21   omitted)).

22       Given the demeanor, inconsistency, and omission

23   findings, all of which related to the main basis of Zhang-

                                    6
 1   Zhou’s claim—his Yiguan Dao practice and arrest—we conclude

 2   that the totality of the circumstances supports the adverse

 3   credibility determination.   See Lin, 534 F.3d at 165-66; Ye

 4   v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)

 5   (“Because the [agency] has identified a material

 6   inconsistency in an aspect of [petitioner]’s story that

 7   served as an example of the very persecution from which he

 8   sought asylum, we hold that the inconsistency afforded

 9   substantial evidence to support the adverse credibility

10   finding.” (citation and internal quotation marks omitted)).

11   A reasonable adjudicator would not be compelled to conclude

12   otherwise.   Lin, 534 F.3d at 167.   The credibility finding

13   is dispositive of Zhang-Zhou’s claims for asylum,

14   withholding of removal, and CAT relief because all of these

15   claims are based on the same discredited factual predicate.

16   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

17       For the foregoing reasons, the petition for review is

18   DENIED.    As we have completed our review, the pending

19   motion for a stay of removal in this petition is DISMISSED

20   as moot.

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




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