Ze Feng Zhu v. Holder ( 2011 )

10-1660-ag
Zhu v. Holder
BIA
Schoppert, IJ
A099 540 379
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 6th day of April, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT A. KATZMANN,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 Ze Feng Zhu,
15 Petitioner,
16
17 v. 10-1660-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of Michael
25 Brown, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Thomas B. Fatouros, Senior
1 Litigation Counsel; Karen Y.
2 Stewart, Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Ze Feng Zhu, a native and citizen of China, seeks
12 review of an April 16, 2010, decision of the BIA affirming
13 the April 28, 2008, decision of Immigration Judge (“IJ”)
14 Douglas Schoppert, which denied his application for asylum,
15 withholding of removal, and relief under the Convention
16 Against Torture (“CAT”). In re Ze Feng Zhu, No. A099 540
17 379 (B.I.A. Apr. 16, 2010), aff’g No. A099 540 379 (Immig.
18 Ct. N.Y. City Apr. 28, 2008). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 in this case.
21 Under the circumstances of this case, we review the
22 decision of the IJ as supplemented by the BIA. See Yan Chen
23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
24 applicable standards of review are well-established. See
25 8 U.S.C. § 1252(b)(4)(B); see also Salimatou Bah v. Mukasey,
26 529 F.3d 99, 110 (2d Cir. 2008); Manzur v. U.S. Dep't of
2
1 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
2 The only issue before us is whether the agency erred in
3 denying Zhu’s application for asylum and withholding of
4 removal premised upon his fear of persecution based on his
5 religion, as Zhu has not challenged the denial of CAT relief
6 or the other bases for relief raised before the agency.
7 For asylum applications governed by the amendments made
8 to the Immigration and Nationality Act by the REAL ID Act of
9 2005, the agency may, considering the totality of the
10 circumstances, base a credibility finding on an asylum
11 applicant’s “demeanor, candor, or responsiveness,” the
12 plausibility of his or her account, and inconsistencies in
13 his or her statements, without regard to whether they go “to
14 the heart of the applicant’s claim.” See 8 U.S.C.
15 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
16 F.3d 162, 167 (2d Cir. 2008). We will “defer . . . to an
17 IJ’s credibility determination unless, from the totality of
18 the circumstances, it is plain that no reasonable fact-
19 finder could make” such a ruling. Xiu Xia Lin, 534 F.3d at
20 167. In this case, the IJ reasonably based his adverse
21 credibility determination on the unexplained inconsistencies
22 in Zhu’s testimony regarding his experiences with
3
1 underground churches in China, and on Zhu’s demeanor. Zhu
2 testified that he attended two different underground
3 Catholic churches in China, both of which were raided by the
4 police and shut down, and that after the churches were shut
5 down, the police came to his home looking for him. In his
6 asylum application, he simply stated that he had gone to
7 Catholic Mass twice while in China. He did not mention that
8 either of the churches he went to were raided by the police,
9 or that police came to his home looking for him, nor did he
10 mention that he fled to, and then lived in, Shanghai. When
11 asked in his hearing about these omissions, Zhu had no
12 explanation, other than that he omitted the information.
13 Substantial evidence thus supports the IJ’s finding that
14 Zhu’s omissions, and failure to reasonably explain those
15 omissions, undermined his credibility. See id. The IJ
16 additionally found that Zhu appeared insincere, and “when
17 questioned about inconsistencies or omissions, he simply did
18 not respond for lengthy periods.” We generally defer to an
19 IJ’s demeanor findings, and will do so here. See Majidi v.
20 Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). In this case,
21 the totality of the circumstances, including Zhu’s
22 omissions, lack of explanation, and demeanor, support the
4
1 agency’s adverse credibility determination. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
3 The BIA found that even if it accepted Zhu’s assertion
4 that he would continue to practice his Catholic faith if he
5 were to return to China, Zhu did not establish a well-
6 founded fear of persecution because there was no evidence
7 that the Chinese government was aware, or would become
8 aware, of his Catholicism. An applicant claiming only a
9 prospective fear of persecution must make some showing that
10 the government is aware or is likely to become aware of the
11 activities that might lead persecution. See Hongsheng Leng
12 v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). Moreover, the
13 more recent reports of country conditions suggested that
14 while underground churches were interfered with by the
15 government, treatment varied greatly in different areas, and
16 in some localities the churches were tolerated. The BIA
17 reasonably found that this differing treatment undermined
18 Zhu’s fear of being singled out for persecution, because a
19 fear is not objectively reasonable if it lacks “solid
20 support” in the record and is merely “speculative at best.”
21 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).
22 Accordingly, the agency reasonably concluded that Zhu failed
23 to establish a well-founded fear of persecution based on his
5
1 practice of Catholicism.
2 For the foregoing reasons, the petition for review is
3 DENIED. As we have completed our review, any stay of
4 removal that the Court previously granted in this petition
5 is VACATED, and any pending motion for a stay of removal in
6 this petition is DENIED as moot. Any pending request for
7 oral argument in this petition is DENIED in accordance with
8 Federal Rule of Appellate Procedure 34(a)(2), and Second
9 Circuit Local Rule 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
6