Tong Zhu v. Holder , 561 F. App'x 119 ( 2014 )

13-2387
Zhu v. Holder
BIA
Segal, IJ
A200 836 072
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 9th day of April, two thousand fourteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 TONG ZHU,
15 Petitioner,
16
17 v. 13-2387
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Michael A. O. Brown, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; David V. Bernal, Assistant
28 Director; Yedidya Cohen, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 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 Tong Zhu, a native and citizen of China,
6 seeks review of a May 28, 2013, order of the BIA, affirming
7 the January 5, 2012, decision of an Immigration Judge
8 (“IJ”), which denied asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Tong Zhu, No. A200 836 072 (B.I.A. May 28, 2013), aff’g No.
11 A200 836 072 (Immig. Ct. New York City Jan. 5, 2012). We
12 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 Zhu’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
2
1 whether they go “to the heart of the applicant’s claim.”
2 8 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 Contrary to Zhu’s assertions, the agency reasonably
8 determined that he was not credible due to inconsistencies
9 among his airport interview, application, and testimony
10 concerning the basis of his asylum claim. See 8 U.S.C.
11 § 1158(b)(1)(B)(iii); see also Ramsameachire v. Ashcroft,
12 357 F.3d 169, 181 (2d Cir. 2004). Indeed, Zhu stated during
13 his airport interview that he feared returning to China
14 because he was learning to cook from a chef who had been
15 arrested for teaching an illegal religion, but indicated in
16 his application and testimony that he left China because he
17 suffered and feared persecution for his involvement with an
18 underground church. While Zhu contended before the IJ that
19 he had lied because he was afraid that the immigration
20 officer would contact the Chinese Consulate, the IJ was not
21 required to credit his explanation given that Zhu was not
22 asked whether he wished to contact the Chinese Consulate
3
1 until after he stated his reason for seeking asylum. See
2 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
3 Because the IJ considered and rejected Zhu’s explanation,
4 she did not err in basing her adverse credibility
5 determination on Zhu’s airport-interview statements. See
6 Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005)(per
7 curiam) (finding, under pre-REAL ID Act case law, that IJ
8 erred in basing adverse credibility determination on
9 inconsistencies between applicant’s airport-interview
10 statements and later testimony without first considering
11 alien’s explanations for the inconsistencies); see also Guan
12 v. Gonzales, 432 F.3d 391, 398 (2d Cir. 2005). Lastly,
13 Zhu’s contention that a snakehead coerced him into making
14 false statements during his airport interview is both
15 unexhausted and not supported by the record, given that Zhu
16 did not comply with the snakehead’s instruction to state
17 that he was persecuted for attending an underground church.
18 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124
19 (2d Cir. 2007) (recognizing that issue exhaustion is a
20 mandatory, although not jurisdictional, requirement);
21 Majidi, 430 F.3d at 80-81.
22
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DENIED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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