17-829
Zhang v. Sessions
BIA
Nelson, IJ
A200 184 295
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 18th day of October, two thousand eighteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
ZHI LIN ZHANG,
Petitioner,
v. 17-829
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Adedayo O. Idowu, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting
Assistant Attorney General; Carl
McIntyre, Assistant Director;
Robert D. Tennyson, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice,
Washington, DC.
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 Zhi Lin Zhang, a native and citizen of the
People’s Republic of China, seeks review of a March 8, 2017,
decision of the BIA affirming a July 14, 2016, decision of an
Immigration Judge (“IJ”) denying Zhang’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Zhi Lin Zhang, No.
A200 184 295 (B.I.A. Mar. 8, 2017), aff’g No. A200 184 295
(Immig. Ct. N.Y. City July 14, 2016). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions. 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); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
2
66 (2d Cir. 2008); Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009).
I. Past Persecution
The agency found that Zhang was not credible regarding
his allegations of past harm. In determining credibility,
the agency may base a credibility finding on
inconsistencies in an applicant’s or his witness’s
statements. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia
Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse
credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. “Where
the IJ’s adverse credibility finding is based on specific
examples . . . of inconsistent statements or contradictory
evidence, a reviewing court will generally not be able to
conclude that a reasonable adjudicator was compelled to
find otherwise.” Id. at 166 (internal quotation marks
omitted).
Here, the IJ’s finding is based on several “specific
examples” of inconsistent statements and contradictory
evidence.
3
First, the IJ identified an inconsistency between
Zhang’s testimony and his application concerning the number
of times he was interrogated while detained. 8 U.S.C.
§ 1158(b)(1)(B)(iii). Zhang’s application reported daily
interrogations during his nearly month-long detention, but
he testified that he was interrogated only three times. The
IJ was not required to credit Zhang’s explanation of
translation error in his application because, among other
things, Zhang declined to submit a Chinese language version
of the statement. Majidi v. Gonzales, 430 F.3d 77, 80 (2d
Cir. 2005) (“A petitioner must do more than offer a
plausible explanation for his inconsistent statements to
secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.”
(internal quotation marks omitted)).
Second, the IJ identified an inconsistency between
Zhang’s testimony and his friend’s letter about the
physical harm Zhang suffered while detained. 8 U.S.C.
§ 1158(b)(1)(B)(iii). The IJ was not compelled to accept
Zhang’s explanation for the inconsistency — that his friend
saw swelling on his face after his release from detention
and assumed that his physical mistreatment had been severe
4
— because Zhang testified only to being slapped on the
third day of a month-long detention. Majidi, 430 F.3d at
80.
Third, the IJ identified an inconsistency between Zhang’s
testimony and his asylum interview about whether he was kicked
during detention.1 Diallo v. Gonzales, 445 F.3d 624, 631-32
(2d Cir. 2006) (observing that an adverse credibility
determination can be based on discrepancies arising from an
asylum interview and that, unlike border interviews, asylum
interviews “do not call for special scrutiny”). Zhang stated
during his asylum interview that the police kicked him in
detention, but he testified that he was only slapped.2 Zhang
did not merely omit being kicked from his testimony, as he
argues on appeal, but he specifically testified that he was
only slapped, which is an inconsistent description of the
alleged harm. App. 75.
Given the foregoing inconsistencies, this Court is “not
. . . able to conclude that a reasonable adjudicator was
compelled to find” Zhang credible. Xiu Xia Lin, 534 F.3d at
166. The agency therefore did not err in rejecting Zhang’s
past persecution claim on credibility grounds.
1 Because the BIA did not reject this finding, it remains part of the
agency decision under review. See Yun-Zui Guan, 432 F.3d at 394.
5
II. Future Persecution
The agency also determined that Zhang failed to meet
his burden for asylum based on his religious activities in
the United States. Absent past persecution, an applicant
may establish eligibility for asylum by demonstrating an
independent well-founded fear of future persecution, which
“is a subjective fear that is objectively reasonable.” Dong
Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir. 2009)
(internal quotation marks omitted); see 8 U.S.C. §
1101(a)(42); 8 C.F.R. § 1208.13(b)(2); see also Y.C. v.
Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum
claim, the applicant must show a reasonable possibility of
future persecution.” (internal quotation marks omitted)).
“[I]n order to establish eligibility for relief based
exclusively on activities undertaken after . . . arrival in
the United States, an alien must make some showing that
authorities in his country of nationality are (1) aware of
his activities or (2) likely to become aware of his
activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 138
(2d Cir. 2008).
Zhang failed to show that Chinese authorities were or
would likely become aware of his activities. Id.; Jian Xing
6
Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the
absence of solid support in the record,” a fear of persecution
is not well founded and “is speculative at best.”). Zhang
does not challenge the agency’s finding that he failed to
present any independent evidence that Chinese authorities
were or would likely become aware of his religious practice
in the United States. He instead contends that Chinese
authorities are aware of his underground church activities
based on his past experiences in China. But, as set forth
above, this Court is not able to conclude that the agency was
compelled to credit Zhang’s testimony. And there was no other
evidence that Chinese authorities would likely discover
Zhang’s religious activities. While Zhang refers to
background evidence and country reports in his brief, he did
not submit any such evidence to the agency. His argument
that he demonstrated his eligibility for asylum because there
is a pattern and practice of persecution in China of
underground Christians is therefore misplaced. See Jian Xing
Huang, 421 F.3d at 129. Accordingly, the agency did not err
in denying asylum or in concluding that he necessarily failed
to meet the higher burdens for withholding of removal and CAT
relief. Y.C., 741 F.3d at 335.
7
For the foregoing reasons, Zhang’s petition for review
is DENIED. As we have completed our review, the pending
motion for a stay of removal in this petition is DISMISSED as
moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
8
Zhang v. Sessions
Combined Opinion