Filed: Nov. 25, 2015
Latest Update: Mar. 02, 2020
Summary: 14-1886 Zheng v. Lynch BIA Bukszpan, IJ A089 097 441 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: 14-1886 Zheng v. Lynch BIA Bukszpan, IJ A089 097 441 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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14-1886
Zheng v. Lynch
BIA
Bukszpan, IJ
A089 097 441
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 25th day of November, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 LINGBIN ZHENG, AKA BING LIN,
14 Petitioner,
15
16 v. 14-1886
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of Michael
25 Brown, New York, New York.
26
27 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
28 Attorney General; John S. Hogan,
1 Assistant Director; David H.
2 Wetmore, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 LingBin Zheng, a native and citizen of China, seeks review
12 of a May 16, 2014 decision of the BIA affirming the November
13 28, 2011 decision of an Immigration Judge (“IJ”), which denied
14 his application for asylum, withholding of removal, and relief
15 pursuant to the Convention Against Torture (“CAT”). In re
16 LingBin Zheng, No. A089 097 441 (B.I.A. May 16, 2014), aff’g
17 No. A089 097 441 (Immig. Ct. N.Y. City Nov. 28, 2011). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we have reviewed both
21 the decisions of the IJ and the BIA “for the sake of
22 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
23 524, 528 (2d Cir. 2006). The applicable standards of review
2
1 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
2 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 For asylum applications like Zheng’s, governed by the REAL
4 ID Act of 2005, the agency may, “[c]onsidering the totality of
5 the circumstances,” base a credibility determination on
6 inconsistencies in an asylum applicant’s statements and other
7 record evidence, “without regard to whether” the
8 inconsistencies go “to the heart of the applicant’s claim.” 8
9 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
10 credibility determination unless, from the totality of the
11 circumstances, it is plain that no reasonable fact-finder could
12 make such an adverse credibility ruling.” Xiu Xia Lin v.
13 Mukasey,
534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
14 Substantial evidence supports the agency’s adverse credibility
15 determination.
16 The agency reasonably considered an inconsistency between
17 Zheng’s testimony and asylum application concerning when he was
18 arrested. Zheng’s asylum application asserted that he was
19 arrested in December 2007 for distributing Falun Gong leaflets,
20 but he testified that the arrest took place in July 2007. The
21 agency was not compelled to credit his explanation that he was
3
1 nervous, especially because he confirmed on direct examination
2 that he was “sure” that he was arrested in July 2007. See Majidi
3 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that
4 the agency need not credit an applicant’s explanations for
5 inconsistent testimony unless those explanations would compel
6 a reasonable fact-finder to do so).
7 The agency also reasonably relied on an inconsistency
8 regarding Zheng’s location when authorities confronted his
9 family about their failure to cooperate with the confiscation
10 of their land. He repeatedly testified that he was not inside
11 his home when the authorities entered; that testimony
12 conflicted with his asylum application and his father’s
13 affidavit, both of which stated that he was having breakfast
14 inside his home when authorities entered. Confronted with this
15 inconsistency, Zheng conceded that he may have been eating
16 breakfast with his father after all. But, given Zheng’s
17 repeated assertions otherwise, the agency was not compelled to
18 ignore the inconsistency. See
Majidi, 430 F.3d at 80-81. The
19 agency reasonably relied further on Zheng’s inconsistent
20 statements regarding whether he was aware of the intended use
21 of his family’s confiscated land.
4
1 Given these inconsistency findings, the totality of the
2 circumstances supports the agency’s adverse credibility
3 determination. See Xiu Xia Lin, 534 F.3d at 167; see also Tu
4 Lin v. Gonzales,
446 F.3d 395, 402 (2d Cir. 2006) (emphasizing
5 that “even where an IJ relies on discrepancies or lacunae that,
6 if taken separately, concern matters collateral or ancillary
7 to the claim, . . . the cumulative effect may nevertheless be
8 deemed consequential by the fact-finder”). That determination
9 is dispositive of asylum, withholding of removal, and CAT
10 relief, as those claims are based on the same factual predicate.
11 Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
5
