Filed: Dec. 08, 2014
Latest Update: Mar. 02, 2020
Summary: 13-4669 Zhen v. Holder BIA Morace, IJ A087 541 277 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 NOTA
Summary: 13-4669 Zhen v. Holder BIA Morace, IJ A087 541 277 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 NOTAT..
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13-4669
Zhen v. Holder
BIA
Morace, IJ
A087 541 277
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of December, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YING FENG ZHEN,
14 Petitioner,
15
16 v. 13-4669
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gerald Karikari, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Stephen J. Flynn, Assistant
28 Director; Lynda A. Do, Attorney,
29 Office of Immigration Litigation,
1 United States Department of Justice,
2 Washington D.C.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Ying Feng Zhen, a native and citizen of China, seeks
8 review of a November 14, 2013, decision of the BIA affirming
9 the April 12, 2012, decision of an Immigration Judge (“IJ”),
10 denying his application for asylum, withholding of removal,
11 and relief pursuant to the Convention Against Torture
12 (“CAT”). In re Ying Feng Zhen, No. A087 541 277 (B.I.A.
13 Nov. 14, 2013), aff’g No. A087 541 277 (Immig. Ct. N.Y. City
14 Apr. 12, 2012). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 We have reviewed the decision of the IJ as supplemented
17 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
18 Cir. 2005). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 I. Adverse Credibility Determination
22 We find no error in the agency’s determination that
23 Zhen was not credible as to his family planning claim.
2
1 Asylum applications like Zhen’s are governed by the REAL ID
2 Act of 2005.
3 The record supports the agency’s finding that Zhen was
4 often unresponsive while testifying with regard to his
5 family planning claim. See Majidi v. Gonzales, 430 F.3d 77,
6 81 n.1 (2d Cir. 2005); Jin Shui Qiu v. Ashcroft,
329 F.3d
7 140, 152 (2d Cir. 2003). The IJ and the Government’s
8 attorney repeatedly attempted to elicit more detail from
9 Zhen—either by rephrasing questions or by further probing
10 Zhen’s answers—often to no avail. See Shunfu Li v. Mukasey,
11
529 F.3d 141, 157 (2d Cir. 2008). The agency was not
12 required to credit Zhen’s explanation that unresponsiveness
13 is his normal disposition. See Majidi v. Gonzales,
430 F.3d
14 77, 80-81 (2d Cir. 2005). Having called Zhen’s credibility
15 into question, the agency reasonably relied further on his
16 failure to provide credible corroborating evidence. See
17 Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (per
18 curiam).
19 Given Zhen’s unresponsive testimony and lack of
20 corroborating evidence regarding his family planning claim,
21 the totality of the circumstances supports the agency’s
22 adverse credibility determination. See Xiu Xia Lin v.
3
1 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). That
2 determination is dispositive of asylum, withholding of
3 removal, and CAT relief insofar as they were based on Zhen’s
4 family planning claim. Paul v. Gonzales,
444 F.3d 148, 156-
5 57 (2d Cir. 2006).
6 II. Burden of Proof
7 The agency also reasonably determined that Zhen failed
8 to establish a well-founded fear of persecution based on his
9 practice of Falun Gong. Absent past persecution, an
10 applicant may establish eligibility for asylum by
11 demonstrating a well-founded fear of future persecution,
12 8 C.F.R. § 1208.13(b)(2), which must be both subjectively
13 credible and objectively reasonable, Ramsameachire v.
14 Ashcroft,
357 F.3d 169, 178 (2d Cir. 2004). To demonstrate
15 such a well-founded fear, an applicant must show either that
16 he would be singled out for persecution or that the country
17 of removal has a pattern or practice of persecuting those
18 similarly situated to him. 8 C.F.R. § 1208.13(b)(2)(iii).
19 Irrespective of the theory, the agency was not compelled to
20 find that Zhen demonstrated a well-founded fear of
21 persecution.
22
4
1 Although Zhen failed to submit any country conditions
2 in support of his application, the IJ took administrative
3 notice of the 2010 State Department Country Reports on Human
4 Rights Practices. That report discussed the mistreatment of
5 certain Falun Gong supporters. However, because Zhen’s
6 practice of Falun Gong is neither public nor high-profile,
7 the agency did not err in finding that he failed to
8 demonstrate a reasonable possibility of being singled out
9 for persecution, or that there is a pattern or practice of
10 persecution against similarly situated practitioners. See
11 Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir. 2008)
12 (providing that the agency is not compelled to resolve
13 conflicts in record evidence in the applicant’s favor so
14 long as substantial evidence raises doubts that authorities
15 will single out the applicant for persecution and the agency
16 does not overlook contrary evidence); Santoso v. Holder, 580
17 F.3d 110, 112 & n.1 (2d Cir. 2009) (denying petition where
18 agency considered background materials and rejected
19 pattern-or-practice claim).
20 Because the agency reasonably found that Zhen failed to
21 demonstrate a well-founded fear of persecution on account of
22 his practice of Falun Gong, it did not err in denying
5
1 asylum, withholding of removal, and CAT relief insofar as
2 those claims were based on that practice. See Paul, 444
3 F.3d at 156-57.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
6
