08-4293-ag
Zhu v. Holder
BIA
Schoppert, IJ
A95 716 389
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 1 st day of February, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN
8 ROSEMARY S. POOLER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 _______________________________________
13
14 ZHI LING ZHU, also known as TSE LIN ZHU,
15 Petitioner,
16
17 v. 08-4293-ag
18 NAC
19 ERIC H. HOLDER, JR., U.S.
20 ATTORNEY GENERAL, *
21 Respondent.
22 _______________________________________
23
24
25
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Eric H. Holder Jr. is automatically substituted for former Attorney
General Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Gary J. Yerman, New York, New York,
2 New York.
3
4 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
5 Attorney General; Michelle Gorden
6 Latour, Assistant Director; Tracie
7 N. Jones, Trial Attorney, Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED, that the petition for review
15 is DENIED.
16 Zhi Ling Zhu, a native and citizen of the People’s
17 Republic of China, seeks review of an August 11, 2008 order
18 of the BIA, affirming the May 17, 2007 decision of
19 Immigration Judge (“IJ”) Douglas Schoppert, which denied her
20 application for asylum, withholding of removal, and relief
21 under the Convention Against Torture (“CAT”). In re Zhi
22 Ling Zhu, No. A95 716 389 (B.I.A. Aug. 11, 2008), aff’g No.
23 A95 716 389 (Immig. Ct. N.Y. City May 17, 2007). We assume
24 the parties’ familiarity with the underlying facts and
25 procedural history in this case.
26 “Where . . . the BIA agrees with the IJ’s conclusion
27 that a petitioner is not credible and, without rejecting any
28 of the IJ’s grounds for decision, emphasizes particular
29 aspects of that decision, we . . . review both the BIA’s and
2
1 IJ’s opinions -- or more precisely, we review the IJ’s
2 decision including the portions not explicitly discussed by
3 the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
4 Cir. 2005). We review the agency’s factual findings,
5 including adverse credibility findings, under the
6 substantial evidence standard. See 8 U.S.C. §
7 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
8 (2d Cir. 2008).
9 “We defer . . . to an IJ’s credibility determination
10 unless, from the totality of the circumstances, it is plain
11 that no reasonable fact-finder could make such an adverse
12 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For
13 asylum applications governed by the REAL ID Act, the agency
14 may, considering the totality of the circumstances, base a
15 credibility finding on an asylum applicant’s demeanor, the
16 plausibility of his or her account, and inconsistencies in
17 his or her statements, without regard to whether they go “to
18 the heart of the applicant’s claim.” 8 U.S.C. §
19 1158(b)(1)(B)(iii).
20 Substantial evidence supports the agency’s adverse
21 credibility determination. Indeed, the IJ reasonably relied
22 on the inconsistency between Zhu’s testimony that she had
3
1 never been arrested and her statement during her credible
2 fear interview that she had been arrested for passing out
3 Christian information flyers. Moreover, there can be no
4 question as to the reliability of the record of Zhu’s
5 statements during her credible fear interview where she
6 admitted making such inconsistent statements. Cf.
7 Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004)
8 (noting that where discrepancies and omissions arise in the
9 context of an applicant’s statements during an airport
10 interview, the agency and this Court must closely examine
11 the interview to ensure that it represents a “sufficiently
12 accurate record” of the applicant’s statements to merit
13 consideration in determining whether the applicant is
14 credible). Furthermore, the IJ reasonably declined to
15 credit Zhu’s explanation that her smuggler told her to
16 exaggerate her claim in order to obtain asylum, finding that
17 her exaggeration demonstrated her willingness to lie to
18 immigration officials. See Majidi v. Gonzales, 430 F.3d 77,
19 80-81 (2d Cir. 2005).
20 Ultimately, because a reasonable fact-finder would not
21 be compelled to conclude to the contrary, the IJ’s adverse
22 credibility determination was supported by substantial
4
1 evidence. See Xiu Xia Lin, 534 F.3d at 165-67. Thus, the
2 agency properly denied Zhu’s application for asylum,
3 withholding of removal, and CAT relief insofar as it was
4 based on her practice of Christianity in China because each
5 of these claims was based on the same factual predicate and
6 Zhu’s testimony as to the underlying facts was not credited
7 by the IJ. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
8 2006).
9 Additionally, the agency did not err in finding that
10 Zhu failed to demonstrate a well-founded fear of persecution
11 on account of her religious activities in the United States,
12 as she does not cite any evidence in the record that
13 supports her claim of such a fear. See Hongsheng Leng v.
14 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“[T]o establish a
15 well-founded fear of persecution in the absence of any
16 evidence of past persecution, an alien must make some
17 showing that authorities in h[er] country of nationality are
18 either aware of h[er] activities or likely to become aware
19 of h[er] activities.”). Therefore, the agency reasonably
20 denied her application for asylum, withholding of removal,
21 and CAT relief insofar as it was based on her practice of
22 Christianity in the United States. See Paul, 444 F.3d at
23 156.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
6