Filed: Sep. 24, 2015
Latest Update: Mar. 02, 2020
Summary: 12-1134 Zheng v. Lynch BIA Van Wyke, IJ A070 580 335 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 NO
Summary: 12-1134 Zheng v. Lynch BIA Van Wyke, IJ A070 580 335 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 NOT..
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12-1134
Zheng v. Lynch
BIA
Van Wyke, IJ
A070 580 335
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.
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
24th day of September, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
_____________________________________
JIN HUA ZHENG,
Petitioner,
v. 12-1134
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Raymond Lo, Jersey City, N.J.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Cindy S. Ferrier,
Assistant Director; Michele Y. F.
Sarko, 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.
Petitioner Jin Hua Zheng, a native and citizen of China,
seeks review of a February 29, 2012, decision of the BIA
affirming a February 24, 2010, decision of an Immigration Judge
(“IJ”) denying Zheng’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Jin Hua Zheng, No. A070 580 335 (B.I.A. Feb.
29, 2012), aff’g No. A070 580 335 (Immig. Ct. N.Y. City Feb.
24, 2010). We assume the parties’ familiarity with the
underlying facts, procedural history, and issues presented for
review.
Under the circumstances of this case, we have reviewed the
IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
2
§ 1252(b)(4)(B); Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d
Cir. 2003), superseded by statute with respect to REAL ID Act
cases as stated in Xiu Xia Lin v. Mukasey,
534 F.3d 162 (2d Cir.
2008).
Because Zheng first applied for asylum in 1993, the REAL
ID Act does not govern review of the adverse credibility
determination in this case. See REAL ID Act of 2005, Div. B
of Pub. L. No. 109-13, 119 Stat. 302, 303 (2005) (codified at
8 U.S.C. § 1158(b)(1)(B)(iii)); Matter of S-B-, 24 I. & N. Dec.
42, 45 (B.I.A. 2006). In pre-REAL ID Act cases, an adverse
credibility determination must be based on “specific, cogent
reasons” that “bear a legitimate nexus to the finding,” and any
discrepancy must be “substantial” when measured against the
record as a whole. Secaida-Rosales, 331 F.3d at 307 (internal
quotation marks omitted). Although our review of an IJ’s
credibility-based denial of relief is “highly deferential,”
Zhou Yi Ni v. U.S. Dep’t of Justice,
424 F.3d 172, 174 (2d Cir.
2005) (per curiam), “an IJ’s credibility determination will not
satisfy the substantial evidence standard when it is based
entirely on flawed reasoning, bald speculation, or conjecture,”
Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 335 (2d
3
Cir. 2006) (citing Secaida-Rosales, 331 F.3d at 307, 312).
Here, substantial evidence supports the adverse
credibility determination. As the agency observed, Zheng’s
original application and amended applications are inconsistent
with respect to the sole incident of past harm. The original
application stated that his neighbor convinced him not to
confront or fight the family planning officials, but his amended
application stated that he did have an altercation in which the
officials beat him. And while his original application stated
that his wife became pregnant in June 1992, his amended
application said she became pregnant over a year earlier, in
February 1991. The record clearly supports these
inconsistencies, and the inconsistency regarding Zheng’s
interaction with family planning officials calls into question
whether the officials ever harmed him—the sole incident of
alleged persecution. Accordingly, these inconsistencies
provide substantial evidence for the adverse credibility
determination because they go to the heart of Zheng’s claim.
See Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir. 2006)
(per curiam); Zhou Yun Zhang v. INS,
386 F.3d 66, 77-78 (2d Cir.
2004);
Secaida-Rosales, 331 F.3d at 307-08. Moreover, the
4
timing of Zheng’s amended application, which followed a change
in the law requiring that applicants personally suffer harm to
be eligible for relief, calls into question the expansion of
his past harm in his amended application.
Zheng argues that the agency should not have rejected his
explanation that the original application was inaccurate
because a travel agency prepared it without his input. But the
agency was not required to credit this explanation, especially
since the original application included details personal to
Zheng, making his explanation that it was prepared without his
input implausible. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005) (holding that the agency need not credit an
explanation unless a reasonable factfinder would be compelled
to do so).
In sum, substantial evidence supports the agency’s adverse
credibility determination. See Secaida-Roasales, 331 F.3d at
307-08. As all of Zheng’s claims share the same factual
predicate, the adverse credibility determination is
dispositive. See Paul v. Gonzales,
444 F.3d 148, 155-57 (2d
Cir. 2006). As a result, we need not reach the agency’s
alternative rulings or the Government’s waiver arguments.
5
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
6
