Filed: Jul. 30, 2010
Latest Update: Feb. 21, 2020
Summary: 07-3412-ag Zheng v. Holder BIA Sichel, IJ A095 161 001 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
Summary: 07-3412-ag Zheng v. Holder BIA Sichel, IJ A095 161 001 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 N..
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07-3412-ag
Zheng v. Holder
BIA
Sichel, IJ
A095 161 001
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 30 th day of July, two thousand ten.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
______________________________________
RONG ZHENG,
Petitioner,
v. 07-3412-ag
NAC
ERIC H. HOLDER, JR., *
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Michael Brown, New York, New York.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Alberto Gonzales as the respondent in this case.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General; Michelle Gorden
Latour, Assistant Director; Tracie
N. Jones, 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.
Rong Zheng, a native and citizen of the People’s
Republic of China, seeks review of a July 13, 2007, order of
the BIA affirming the August 23, 2005, decision of
Immigration Judge (“IJ”) Helen J. Sichel, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Rong
Zheng No. A095 161 001 (BIA July 13, 2007), aff’g No. A095
161 001 (Immig. Ct. N.Y. City Aug. 23, 2005). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as modified by the BIA decision. See Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2005). The applicable standards of review are well
2
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
I. Zheng’s Falun Gong Claim
Substantial evidence supports the agency’s
determination that Zheng did not credibly establish that he
suffered past persecution due to his Falun Gong practice.
See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.
2003). The IJ reasonably found Zheng not credible based on:
(1) his inconsistent testimony regarding the date he was
allegedly arrested; (2) his admittedly false claim that he
was persecuted on account of his homosexuality; (3) his
inconsistent testimony about what information he provided in
his first asylum application; and (4) his lengthy delay in
raising his Falun Gong claim. See Yun-Zui Guan v. Gonzales,
432 F.3d 391, 398 (2d Cir. 2005) (upholding adverse
credibility determination based “on the commonsense
observation that it is inconsistent for a petitioner to
respond to the same question about the nature of his asylum
claim with two entirely different responses”). Although
petitioner offered explanations for these discrepancies, a
reasonable fact finder would not be compelled to credit
them. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir.
2005).
3
The agency also reasonably determined that Zheng failed
to establish a well-founded fear of future persecution due
to his practice of Falun Gong in the United States, as he
failed to present any evidence indicating that authorities
in China are aware or likely to become aware of his
practice. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
(2d Cir. 2008) (“[T]o establish a well-founded fear of
persecution in the absence of any evidence of past
persecution, an alien must make some showing that
authorities in his country of nationality are either aware
of his activities or likely to become aware of his
activities.”); Jian Xing Huang v. INS,
421 F.3d 125, 128-29
(2d Cir. 2005) (holding that, absent solid record support
for petitioner’s assertion that he would persecuted, his
fear was “speculative at best”).
II. Zheng’s Family Planning Claim
Substantial evidence supports the agency’s
determination that Zheng failed to establish a well-founded
fear of persecution based on the birth of his two United
States citizen children. As Zheng conceded, his wife is
exempt from China’s family policy because she is a United
States citizen, and his children would remain in the United
4
States with his wife if he were removed to China. See Shao
v. Mukasey, 546 F.3d 138, 143 (2d Cir. 2008) (observing that
absent evidence of a “perceived violation of [China’s family
planning policy], an alien could hardly demonstrate an
objectively reasonable fear of any enforcement action”).
III. Motion to Remand
We review the BIA's denial of a motion to remand for
abuse of discretion, see Li Yong Cao v. Dep't of Justice,
421 F.3d 149, 151, 157 (2d Cir. 2005), and detect no such
abuse on this record. In support of his motion, Zheng
submitted a filing receipt for an immigrant petition filed
on his behalf by his wife. The BIA reasonably denied
Zheng’s motion, finding that he failed to demonstrate that
he is eligible for adjustment of status, and that,
accordingly, he failed to demonstrate that the new evidence
was likely to change the outcome of his case. See INS v.
Abudu,
485 U.S. 94, 104-05 (1988); Poradisova v. Gonzales,
420 F.3d 70, 78 (2d Cir. 2005).
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 motion for a stay of removal in
5
this petition is DISMISSED 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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
