Tong Zhu v. Holder
Opinion
*120 SUMMARY ORDER
Petitioner Tong Zhu, a native and citizen of China, seeks review of a May 28, 2013, order of the BIA, affirming the January 5, 2012, decision of an Immigration Judge (“IJ”), which denied asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Tong Zhu, No. A200 836 072 (B.I.A. May 28, 2013), aff'g No. A200 836 072 (Immig. Ct. New York City Jan. 5, 2012). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this ease, we review the decisions of both the IJ and the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
For applications such as Zhu’s, which are governed by the REAL ID Act, the agency may base a credibility finding on an applicant’s demeanor, the plausibility of his account, and inconsistencies in his statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
Contrary to Zhu’s assertions, the agency reasonably determined that he was not credible due to inconsistencies among his airport interview, application, and testimony concerning the basis of his asylum claim. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Ramsameachire v. Ashcroft, 357 F.3d 169, 181 (2d Cir. 2004). Indeed, Zhu stated during his airport interview that he feared returning to China because he was learning to cook from a chef who had been arrested for teaching an illegal religion, but indicated in his application and testimony that he left China because he suffered and feared persecution for his involvement with an underground church. While Zhu contended before the IJ that he had lied because he was afraid that the immigration officer would contact the Chinese Consulate, the IJ was not required to credit his explanation given that Zhu was not asked whether he wished to contact the Chinese Consulate until after he stated his reason for seeking asylum. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Because the IJ considered and rejected Zhu’s explanation, she did not err in basing her adverse credibility determination on Zhu’s airport-interview statements. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (per curiam) (finding, under pre-REAL ID Act case law, that IJ erred in basing adverse credibility determination on inconsistencies between applicant’s airport-interview statements and later testimony without first considering alien’s explanations for the inconsistencies); see also Guan v. Gonzales, 432 F.3d 391, 398 (2d Cir. 2005). Lastly, Zhu’s contention that a snakehead coerced him into making false statements during his airport interview is both unexhausted and not supported by the record, given that Zhu did not comply with the snakehead’s instruction to state that he was persecuted for-attending an underground church. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir. 2007) (recognizing that issue exhaustion is a mandatory, although not jurisdictional, requirement); Majidi, 430 F.3d at 80-81.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending mo *121 tion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
Reference
- Full Case Name
- TONG ZHU, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
- Status
- Unpublished