Filed: Aug. 24, 2012
Latest Update: Mar. 26, 2017
Summary: 11-3982-ag BIA Zheng v. Holder LaForest, IJ A089 913 149 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 TH
Summary: 11-3982-ag BIA Zheng v. Holder LaForest, IJ A089 913 149 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..
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11-3982-ag BIA
Zheng v. Holder LaForest, IJ
A089 913 149
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 24th day of August, two thousand twelve.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XIUQIN ZHENG,
14 Petitioner,
15
16 v. 11-3982
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Stephen J. Flynn,
27 Assistant Director, Imran R. Zaidi, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department of
30 Justice, Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Xiuqin Zheng, a native and citizen of the
7 People’s Republic of China, seeks review of a September 7,
8 2011, order of the BIA affirming the January 26, 2010,
9 decision of Immigration Judge (“IJ”) Brigitte LaForest
10 denying her application for asylum, withholding of removal,
11 and relief under the Convention Against Torture (“CAT”). In
12 re Xiuqin Zheng, No. A089 913 149 (B.I.A. Sept. 7, 2011),
13 aff’g No. A089 913 149 (Immig. Ct. N.Y. City Jan. 26, 2010).
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 “Where, as here, the BIA adopts the IJ's reasoning and
17 offers additional commentary, we review the decision of the
18 IJ as supplemented by the BIA.” Wala v. Mukasey, 511 F.3d
19 102, 105 (2d Cir. 2007). The applicable standards of review
20 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
21 Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
22 For applications such as Zheng’s, governed by the
23 amendments made to the Immigration and Nationality Act by
2
1 the REAL ID Act of 2005, the agency may, considering the
2 totality of the circumstances, base a credibility finding on
3 the applicant’s “demeanor, candor, or responsiveness,” the
4 plausibility of her account, and inconsistencies in her
5 statements, without regard to whether they go “to the heart
6 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
7 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
8 2008). We will “defer to an IJ’s credibility determination
9 unless, from the totality of the circumstances, it is plain
10 that no reasonable fact-finder could make” such a ruling.
11 Xiu Xia Lin, 534 F.3d at 167.
12 In this case, the IJ’s adverse credibility
13 determination is supported by substantial evidence. First,
14 the IJ identified numerous inconsistencies in Zheng’s
15 testimony, for which Zheng provided inadequate explanations.
16 See id. (holding that the agency may rely on “any
17 inconsistency,” as considered with the totality of the
18 circumstances, in making an adverse credibility
19 determination). Zheng testified that she had given birth to
20 a child in China and that Chinese officials forced her to
21 undergo an abortion when she subsequently became pregnant
22 again. In addition, at the time of her hearing, Zheng was
3
1 visibly pregnant and testified that she was due to give
2 birth in three weeks. However, when questioned about the
3 number of times she had been pregnant, Zheng testified that
4 she had been pregnant twice, once in China and once in the
5 United States. In addition, although Zheng stated in her
6 asylum application that she had been arrested in China and
7 detained for two days, she testified that she had never been
8 arrested.
9 In finding Zheng not credible, the IJ also reasonably
10 relied on the vagueness of Zheng’s testimony regarding key
11 elements of her claim. See Jin Shui Qiu v. Ashcroft, 329
12 F.3d 140, 152 (2d Cir. 2003) (“Where an applicant gives very
13 spare testimony, as here, the [fact-finder] may fairly
14 wonder whether the testimony is fabricated.”), overruled in
15 part on other grounds by Shi Liang Lin v. U.S. Dept. of
16 Justice,
494 F.3d 296, 305 (2d Cir. 2007) (en banc). As the
17 IJ noted, Zheng’s testimony lacked specific detail regarding
18 the two incidents upon which her claim of past persecution
19 was based: her alleged forced abortion and her alleged
20 arrest by Chinese authorities at an unregistered family
21 church service.
22 The adverse credibility determination also is supported
4
1 by the IJ’s demeanor finding, which we generally afford
2 particular deference, especially when, as here, it is
3 “supported by specific examples of inconsistent testimony.”
4 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
5 Cir. 2006). The IJ made specific note of several instances
6 when Zheng paused for thirty seconds or more before
7 attempting to answer a question; the IJ also noted that
8 Zheng would often “look around” the room for an extended
9 period of time “as if trying to remember” before answering
10 and that she answered some questions with “a long silence.”
11 Although Zheng alleged that the deficiencies in her
12 testimony resulted from memory trouble and pregnancy-related
13 symptoms, the IJ was not compelled to accept her
14 explanation. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d
15 Cir. 2005). In sum, given the inconsistencies, as well as
16 Zheng’s vague and evasive testimony, the IJ’s adverse
17 credibility determination is supported by substantial
18 evidence and the agency did not err in denying asylum,
19 withholding of removal, and CAT relief on this basis. See
20 Xiu Xia Lin, 534 F.3d at 167; Paul v. Gonzales,
444 F.3d
21 148, 156 (2d Cir. 2006).
22 We reject Zheng’s argument that the IJ failed in her
23 duty to develop the record. The record shows that the IJ
5
1 made every effort to give Zheng a meaningful opportunity to
2 elaborate on her claims, probing her testimony when it
3 lacked detail and asking her to provide explanations for
4 inconsistencies, discrepancies, and omissions. See Ming Shi
5 Xue v. BIA, 439 F.3d 111, 125 n.18 (2d Cir. 2006) (“An IJ's
6 responsibility to identify, in advance of judgment,
7 perceived inconsistencies, is not tantamount to a duty to
8 assist the counseled asylum applicant in putting forward an
9 affirmative asylum claim in the first place.”). We also
10 reject Zheng’s argument that the IJ violated her right to
11 due process by failing to inquire further about her alleged
12 memory impairment as Zheng was represented by counsel at her
13 hearing, and, had she suffered from a physical or mental
14 condition that interfered with her ability to testify, her
15 attorney could and should have requested an adjournment.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
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