No. 08-0324-ag NAC.United States Court of Appeals, Second Circuit.
October 15, 2008.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
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FOR PETITIONER: Alexander Kwok-Ho Yu, New York, NewYork.
FOR RESPONDENT: Gregory G. Katsas, Assistant AttorneyGeneral; Blair T. O’Connor, Senior Litigation Counsel; HannahBaublitz, Attorney, Office of Immigration Litigation, CivilDivision, United States Department of Justice, Washington,D.C.
PRESENT: HON. PIERRE N. LEVAL, HON. SONIA SOTOMAYOR,HON. DEBRA ANN LIVINGSTON Circuit Judges.
Hui Zhang, a native and citizen of the People’s Republic of China, seeks review of a December 21, 2007 order of the BIA affirming the December 5, 2005 decision of Immigration Judge (“IJ”) Robert D. Weisel, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hui Zhang, No. A98 718 788 (B.I.A. Dec. 21, 2007), aff’g No. A98 718 788 (Immig. Ct. N.Y. City Dec. 5, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
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417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).[1] Under that standard, 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 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005).
We find that the agency’s adverse credibility finding is supported by substantial evidence. In reaching that finding, the IJ properly relied on Zhang’s inconsistent testimony, where he initially testified that he first participated in Falun Gong in May 2004, but later testified that he began practicing Falun Gong months earlier in February 2004. The IJ also found that Zhang’s testimony
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that he did not have any other problems after his May 2004 arrest was inconsistent with his asylum application in which he alleged that his Falun Gong activities were reported to authorities in October 2004 and that they came to his home thereafter. Under the REAL ID Act, it was proper for the IJ to rely on these inconsistencies in making his adverse credibility finding. 8 U.S.C. § 1158(b)(1)(B)(iii).
The IJ also relied on Zhang’s lack of specificity in making his adverse credibility determination. The IJ correctly noted that Zhang had very limited knowledge of the practice, tenets, and philosophy of Falun Gong, that his testimony lacked specificity regarding the people with whom he practiced Falun Gong, and that he could not provide any detail about his alleged activities posting Falun Gong flyers. To the extent that the IJ’s concerns related to Zhang’s demeanor, it was proper for the IJ to consider it among the “totality of the circumstances” in making his adverse credibility determination. Id.; see also Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir. 2005). While Zhang argues in his brief that the IJ’s finding with regard to this lack of specificity was “non-existing and also unfounded,” he fails to address the concrete examples given
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by the IJ. See Li Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
Taken together, the IJ’s findings with respect to the inconsistencies in the record and Zhang’s demeanor constitute substantial evidence in support of the denial of Zhang’s asylum application. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Inasmuch as Zhang based his claim for withholding of removal and CAT relief on the same factual predicate as his asylum claim, and the IJ found that this evidence lacked credibility, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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