Fei Zhuo v. Holder

13-1253
Zhuo v. Holder
BIA
Christensen, IJ
A200 922 381

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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 22nd day of April, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 Fei Zhuo,
14 Petitioner,
15
16 v. 13-1253
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Troy Nader Moslemi, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Linda S. Wernery, Assistant
27 Director; Gerald M. Alexander, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, 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 Petitioner Fei Zhuo, a native and citizen of China,

6 seeks review of a March 13, 2013, order of the BIA,

7 affirming the August 4, 2011, decision of an Immigration

8 Judge (“IJ”), which denied asylum, withholding of removal,

9 and relief under the Convention Against Torture (“CAT”). In

10 re Fei Zhuo, No. A200 922 381 (B.I.A. Mar. 13, 2013), aff’g

11 No. A200 922 381 (Immig. Ct. New York City Aug. 4, 2011).

12 We assume the parties’ familiarity with the underlying facts

13 and procedural history in this case.

14 Under the circumstances of this case, we review the

15 decisions of both the IJ and the BIA. See Yun-Zui Guan v.

16 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

17 The applicable standards of review are well established.

18 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

20 For applications such as Zhuo’s, which are governed by

21 the REAL ID Act, the agency may base a credibility finding

22 on an applicant’s demeanor, the plausibility of his account,

23 and inconsistencies in his statements, without regard to

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 1 whether they go “to the heart of the applicant’s claim.” 8

2 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an IJ’s

3 credibility determination unless, from the totality of the

4 circumstances, it is plain that no reasonable fact-finder

5 could make such an adverse credibility ruling.” Xiu Xia

6 Lin, 534 F.3d at 167.

7 Zhou does not contest the presence or materiality of

8 the inconsistency that formed the basis of the adverse

9 credibility determination. Instead, he contends that the IJ

10 failed to sufficiently probe his explanation that his

11 testimony and application differed because he was nervous.

12 Thus, Zhuo appears to suggest that he would have proffered a

13 better explanation if asked by the IJ to clarify how his

14 nervousness accounted for the inconsistency, although he

15 does not identify what that better explanation would have

16 been. The IJ was entitled to reject Zhou’s explanation that

17 he was nervous because the explanation would not be

18 compelling to a reasonable fact-finder. See Majidi v.

19 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

20 The agency reasonably determined that Zhou’s failure to

21 provide sufficient corroborative evidence – including

22 testimony from his wife, then a resident of the United

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 1 States – further undermined his credibility. See Biao Yang

2 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam).

3 Zhuo testified that he began dating his wife in China prior

4 to his arrest in 2008 and, therefore, the BIA reasonably

5 determined that her testimony would have been probative.

6 The IJ also reasonably noted that Zhuo’s wife would have

7 been able to corroborate his practice of Falun Gong in the

8 United States, even though she was not a Falun Gong

9 practitioner. Id.

10 As the agency reasonably found that Zhuo failed to

11 establish eligibility for asylum on credibility grounds, it

12 did not err in denying withholding of removal and CAT relief

13 because these claims shared the same factual predicate. See

14 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong

15 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

16 2005). We decline to consider Zhuo’s unexhausted challenge

17 to the IJ’s consideration of his unauthenticated evidence.

18 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124

19 (2d Cir. 2007).

20 For the foregoing reasons, the petition for review is

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

22 removal that the Court previously granted in this petition

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

2 this petition is DISMISSED as moot.

3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
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