11-5313
    Zheng v. Holder
                                                                                  BIA
                                                                          Van Wyke, IJ
                                                                          A097 852 070
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT
                                 SUMMARY ORDER
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        At a stated term of the United States Court of Appeals
   for the Second Circuit, held at the Thurgood Marshall United
   States Courthouse, 40 Foley Square, in the City of New York,
   on the 1st day of May, two thousand thirteen.

   PRESENT:
            ROBERT A. KATZMANN,
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                 Circuit Judges.
   _____________________________________

   FENG ZHENG,
            Petitioner,

                      v.                                  11-5313
                                                          NAC
   ERIC H. HOLDER, JR., UNITED STATES
   ATTORNEY GENERAL,
            Respondent.
   _____________________________________

   FOR PETITIONER:                 Evan Goldberg, New York, N.Y.

   FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
                                   Attorney General; Jennifer P.
                                   Levings, Senior Litigation Counsel,
                                   Tim Ramnitz, Trial Attorney, Office
                                   of Immigration Litigation, United
                                   States Department of Justice,
                                   Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Feng Zheng, a native and citizen of the People’s

Republic of China, seeks review of a November 28, 2011,

order of the BIA, affirming the January 27, 2010 and

November 2, 2006, decisions of Immigration Judge (“IJ”)

William Van Wyke, which denied his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).   See In re Feng Zheng, No. A097 852

070 (B.I.A. Nov. 28, 2011), aff’g No. A097 852 070 (Immig.

Ct. N.Y. City Jan. 27, 2010 & Nov. 2, 2006).   We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    As a preliminary matter, because Zheng does not

challenge the agency’s pretermission of his asylum

application as untimely or its denial of CAT relief, we

address only the agency’s denial of withholding of removal.

Contrary to the government’s argument, because the BIA

referenced specific credibility findings in its decision, we

deem Zheng’s challenge to that determination exhausted.

See Waldron v. INS, 

, 515 n.7 (2d Cir. 1994)

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(finding that if the BIA addresses issues not raised by a

petitioner, those issues may be considered exhausted).

    Because “the BIA agree[d] with the IJ’s conclusion that

[the] petitioner [was] not credible and, without rejecting

any of the IJ’s grounds for decision, emphasize[d]

particular aspects of that decision,” we have reviewed both

the IJ’s and the BIA’s decisions.     Yun-Zui Guan v. Gonzales,

, 394 (2d Cir. 2005).     The applicable standards

of review are well established.     See 8 U.S.C.

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 

, 513

(2d Cir. 2009).   In pre-REAL ID Act cases, such as this one,

inconsistencies that form the basis of an adverse

credibility determination     must “bear a legitimate nexus” to

the applicant’s claim of persecution and be “substantial”

when measured against the record as a whole.

Secaida-Rosales v. INS, 

, 307-08 (2d Cir. 2003);

see also Pavlova v. INS, 

, 90 (2d Cir. 2006).

The agency, however, may rely on the cumulative effect of

even minor inconsistencies.     See Tu Lin v. Gonzales, 

, 402 (2d Cir. 2006); Liang Chen v. U.S. Attorney

Gen., 

, 106-107 (2d Cir. 2006) (per curiam).




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    We conclude that substantial evidence supports the

agency’s conclusion that Zheng did not testify credibly that

he suffered past harm and feared future harm on account of

his Christian religion.   In finding Zheng not credible, the

IJ reasonably relied on Zheng’s failure to indicate in his

asylum application that he had been arrested for having

participated in unsanctioned church activities on two

occasions prior to his May 1998 arrest.   See Xiu Xia Lin v.

Mukasey, 

, 166 n.3 (2d Cir. 2008) (holding that

for purposes of analyzing a credibility determination, “[a]n

inconsistency and an omission are . . . functionally

equivalent”); see also Secaida-Rosales, 331 F.3d at 308.

Contrary to Zheng’s argument, details regarding his two pre-

1998 arrests for attending unsanctioned churches were

material, and bore a “legitimate nexus,” to his claim that

he had suffered past persecution on account of his Christian

religion, and, therefore, the omission of such details from

his asylum application formed a legitimate basis for the

IJ’s adverse credibility determination.   See Secaida-

Rosales, 331 F.3d at 307-08; see also Xiu Xia Lin, 534 F.3d

at 166 n.3.




                              4
    The IJ also reasonably relied on Zheng’s failure to

testify consistently regarding whether he had been

continuously in hiding at his home from the time he was

released from detention following his May 1998 arrest until

his departure from China in October 2001, as well as his

inability to confidently recall the number of people that

were arrested during the May 1998 police raid on the worship

services he had been attending or to describe in detail the

circumstances surrounding his second arrest.   This

information related to the heart of Zheng’s claim that he

had been arrested and forced into hiding because of his

practice of Christianity.   See Secaida-Rosales, 331 F.3d at

307-08.

    Furthermore, the IJ reasonably found implausible

Zheng’s assertion that he had called his fellow church

members shortly before his departure from China to tell them

that he was leaving the country given that he had not

maintained any contact with the church members during the

previous three years.   See Wensheng Yan v. Mukasey, 

, 67 (2d Cir. 2009) (holding that where the IJ’s findings

are “tethered to record evidence, and there is nothing else

in the record from which a firm conviction of error could

properly be derived,” we will not disturb the inherent
                              5
implausibility finding).   Contrary to Zheng’s argument, his

failure to maintain contact with fellow church members was

not immaterial because, as the IJ noted, Zheng’s actions

called into question whether he in fact had been a member of

an unsanctioned church in China.

    Having called Zheng’s testimony into question, the IJ

did not err in finding that Zheng failed to corroborate his

claim that he had attended an unsanctioned church in China.

See Biao Yang v. Gonzales, 

, 273 (2d Cir. 2007)

(“[T]he absence of corroboration in general makes an

applicant unable to rehabilitate testimony that has already

been called into question.”).       Specifically, as the IJ

observed, while Zheng testified that he had regularly

attended unsanctioned church gatherings and assisted his ex-

girlfriend with organizing worship services in private

homes, he failed to present any letters from church members

confirming his membership in, or attendance at, any

unsanctioned church.   Although Zheng explained that his

fellow church members were afraid that Chinese authorities

would discover their activities and did not have official

documentation, the IJ was not required to accept these

explanations.   See Majidi v. Gonzales, 

, 80-81

(2d Cir. 2005) (holding that an agency need not credit an
                                6
applicant’s explanations for inconsistent testimony unless

those explanations would compel a reasonable fact-finder to

do so).   Finally, the agency reasonably declined to accord

any probative weight to a letter from a government-

sanctioned church, which indicated that Zheng had attended

the church since 1998, as the letter did not corroborate

Zheng’s claim that he had attended an unsanctioned church in

China.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 

, 342 (2d Cir. 2006) (finding that the weight afforded to

the evidence in immigration proceedings “lies largely within

the discretion of the agency.” (brackets omitted)).

    Because the adverse credibility determination is

supported by the record, the agency did not err in denying

withholding of removal.    See Secaida-Rosales, 331 F.3d at

307-08.

    For the foregoing reasons, the petition for review is

DENIED.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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