17-320 Zhi Hui Zhu v. Barr BIA Chew, IJ A205 621 388 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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 12th day of April, two thousand nineteen. 5 6 PRESENT: 7 REENA RAGGI, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 ZHI HUI ZHU, 14 Petitioner, 15 16 v. 17-320 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Joshua E. Bardavid, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Principal Deputy 26 Assistant Attorney General; Derek 27 C. Julius, Assistant Director; 28 Patricia E. Bruckner, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 33 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 Zhi Hui Zhu, a native and citizen of the

6 People’s Republic of China, seeks review of a January 19,

7 2017, decision of the BIA affirming a February 29, 2016,

8 decision of an Immigration Judge (“IJ”) denying Zhu’s

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Zhi Hui

11 Zhu, No. A 205 621 388 (B.I.A. Jan. 19, 2017), aff’g No. A 205

12 621 388 (Immig. Ct. N.Y. City Feb. 29, 2016). We assume the

13 parties’ familiarity with the underlying facts and procedural

14 history in this case.

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of

17 Homeland Sec.,

(2d Cir. 2006). We review

18 the agency’s factual findings for substantial evidence and

19 its legal conclusions de novo. Y.C. v. Holder,

,

20 332 (2d Cir. 2013).

21 Zhu had the burden of proving a well-founded fear of

22 persecution on account of his political activism. 8 U.S.C.

2 1 §§ 1101(a)(42), 1158(b)(1)(B)(i). To do this, he was

2 required to show that he subjectively feared persecution and

3 that his fear was objectively reasonable. Ramsameachire v.

4 Ashcroft,

(2d Cir. 2004); see also Jian

5 Xing Huang v. U.S. INS,

(2d Cir. 2005) (“In

6 the absence of solid support in the record,” an asylum

7 applicant’s fear of persecution is “speculative at best.”).

8 He could meet his burden by establishing either “a reasonable

9 possibility he . . . would be singled out individually for

10 persecution” or “a pattern or practice . . . of persecution

11 of a group of persons similarly situated to [him] on account

12 of . . . political opinion” along with his ”own inclusion in,

13 and identification with, such group.” 8 C.F.R.

14 § 1208.13(b)(2)(iii); see also Y.C.,

.

15 Because his claim was based solely on his activities in the

16 United States, Zhu had to show a reasonable possibility that

17 Chinese authorities were either already aware, or likely to

18 become aware, of his political activities in the United

19 States. Hongsheng Leng v. Mukasey,

(2d

20 Cir. 2008).

3 1 In determining whether an asylum applicant has met his

2 burden of proof, the agency considers the credibility of the

3 testimony and any corroborating evidence.

4 The testimony of the applicant may be sufficient to 5 sustain the applicant’s burden without 6 corroboration, but only if the applicant satisfies 7 the trier of fact that the applicant’s testimony is 8 credible, is persuasive, and refers to specific 9 facts sufficient to demonstrate that the applicant 10 is a refugee. In determining whether the applicant 11 has met the applicant’s burden, the trier of fact 12 may weigh the credible testimony along with other 13 evidence of record. Where the trier of fact 14 determines that the applicant should provide 15 evidence that corroborates otherwise credible 16 testimony, such evidence must be provided unless the 17 applicant does not have the evidence and cannot 18 reasonably obtain the evidence. 19 20

(b)(1)(B)(ii). We first address credibility

21 and conclude that the agency’s decision not to credit Zhu’s

22 testimony is supported by substantial evidence. See

23 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,

, 76-

24 77 (2d Cir. 2018); Xiu Xia Lin v. Mukasey,

, 165-

25 66 (2d Cir. 2008).

26 Considering the totality of the circumstances, and 27 all relevant factors, a trier of fact may base a 28 credibility determination on the demeanor, candor, 29 or responsiveness of the applicant or witness, the 30 inherent plausibility of the applicant’s or 31 witness’s account, the consistency between the 32 applicant’s or witness’s written and oral statements 33 . . ., the internal consistency of each such 34 statement, the consistency of such statements with 35 other evidence of record (including the reports of 4 1 the Department of State on country conditions), and 2 any inaccuracies or falsehoods in such statements, 3 without regard to whether an inconsistency, 4 inaccuracy, or falsehood goes to the heart of the 5 applicant’s claim, or any other relevant factor. 6 7

(b)(1)(B)(iii). “We defer . . . to an IJ’s

8 credibility determination unless . . . it is plain that no

9 reasonable fact-finder could make such an adverse credibility

10 ruling.” Hong Fei Gao v. Sessions,

, (quoting

11 Xiu Xia Lin,

); see also 8 U.S.C.

12 § 1252(b)(4)(B).

13 The agency reasonably determined that Zhu’s brief

14 testimony regarding Chinese officials’ alleged visit to his

15 wife in China was not credible. The visit came up for the

16 first time on cross examination, and Zhu provided no details

17 about when the visit occurred, when he learned about it, or

18 what officials said to his wife. See id. § 1158(b)(1)(B)(ii)

19 (requiring credible and persuasive testimony). Although

20 Zhu’s asylum application was filed in 2012, and Zhu argues

21 that this incident did not occur until after he published an

22 article critical of the Chinese government in 2015, this does

23 not explain why he did not raise the issue earlier. Zhu

24 never amended or supplemented his asylum application, he did

25 not mention the visit during his direct testimony despite

5 1 being directly asked why he thought the Chinese government

2 was aware of his activities in the United States, and he did

3 not corroborate his allegation with a letter from his wife.

4 See id. § 1158(b)(1)(B)(iii); Biao Yang v. Gonzales,

268, 273 (2d Cir. 2007) (“An applicant’s failure to

6 corroborate his or her testimony may bear on credibility,

7 because the absence of corroboration in general makes an

8 applicant unable to rehabilitate testimony that has already

9 been called into question.”); see also Wensheng Yan v.

10 Mukasey,

(2d Cir. 2007) (“It is well settled

11 that, in assessing the credibility of an asylum applicant’s

12 testimony, an IJ is entitled to consider whether the

13 applicant’s story is inherently implausible.”).

14 The agency’s negative demeanor finding further supports

15 the adverse credibility ruling. See 8 U.S.C.

16 § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of Justice,

17

(2d Cir. 2006) (granting particular deference

18 to credibility findings based on an applicant’s demeanor).

19 The hearing transcript confirms the IJ’s findings that Zhu’s

20 testimony about his time in Germany and the articles he

21 authored was evasive and nonresponsive, particularly as he

6 1 did not produce additional articles he claimed to have

2 authored.

3 Even assuming that Zhu was credible, the agency did not

4 err in concluding that he failed to meet his burden of showing

5 that the government was actually aware of his activities.

6 “[A] failure to corroborate can suffice, without more, to

7 support a finding that an alien has not met his burden of

8 proof.” Chuilu Liu v. Holder,

, 198 n.5 (2d Cir.

9 2009). Because Zhu could have, but did not, produce a letter

10 from his wife to confirm the visit, the agency did not err in

11 concluding that he failed to meet his burden of proof. See

12

(b)(1)(B)(ii).

13 Zhu’s only other evidence of awareness was speculative

14 and, thus, insufficient to meet his burden of proof. See

15 Jian Xing Huang,

. Zhu alleged that there

16 were cameras at the protests he participated in and that the

17 Chinese government monitors the internet. The agency did not

18 err in concluding that this evidence was insufficient,

19 especially as Zhu published only a single article. See Y.C.,

20

. Nor did the agency err in

21 concluding that Zhu failed to show a pattern or practice of

22 persecution of similarly situated pro-democracy activists:

7 1 the State Department’s 2014 Human Rights Report and a news

2 article discussed the arrests of political dissidents who

3 were active within China, but neither mentioned arrests of

4 United States-based activists who returned to China. See 8

(b)(2)(iii); Y.C., 742 F.3d at 334-35. The

6 party chairman’s affidavit also provided no objective basis

7 for Zhu’s belief because it only identified harm to

8 individuals engaged in dissident activity in China.

9 In sum, the agency reasonably found that Zhu failed to

10 demonstrate a well-founded fear of persecution as needed for

11 asylum because he did not provide credible testimony or any

12 objective evidence that the Chinese government was aware or

13 likely to become aware of his activities. See Hongsheng

14 Leng,

. Accordingly, Zhu also failed to meet

15 the higher burdens of proof for withholding of removal and

16 CAT relief. See Y.C.,

.

17 For the foregoing reasons, the petition for review is

18 DENIED.

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court

8