13-2353
    Zheng v. Lynch
                                                                                  BIA
                                                                            Zagzoug, IJ
                                                                          A089 880 293
                          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
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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
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         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 26th day of February, two thousand sixteen.

    PRESENT:
             ROSEMARY S. POOLER,
             DENNY CHIN,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    XIU ZHENG,
             Petitioner,

                     v.                                    13-2353
                                                           NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL1,
             Respondent.
    _____________________________________

    FOR PETITIONER:                Lee Ratner, Law Offices of Michael
                                   Brown, New York, New York.

                 1
              Loretta E. Lynch is automatically substituted as
        the respondent in this case pursuant to Federal Rule of
        Appellate Procedure 43(c)(2).
FOR RESPONDENT:        Stuart F. Delery, Assistant Attorney
                       General; Paul Fiorino, Senior
                       Litigation Counsel; Franklin M.
                       Johnson, Jr., 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.

    Xiu Zheng, a native and citizen of the People’s

Republic of China, seeks review of the BIA’s May 21, 2013

decision, affirming an Immigration Judge’s (“IJ”) February

14, 2012 denial of his application for asylum and

withholding of removal on credibility grounds, and denying

in the first instance his motion to remand.   In re Xiu

Zheng, No. A089 880 293 (B.I.A. May 21, 2013), aff’g No.

A089 880 293 (Immig. Ct. N.Y. City Feb. 14, 2012).    We

assume the parties’ familiarity with the underlying facts

and procedural history of this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as modified and supplemented by the BIA.

See Xue Hong Yang v. U.S. Dep’t of Justice, 

,

522 (2d Cir. 2005); Yan Chen v. Gonzales, 

, 271


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(2d Cir. 2005).     The applicable standards of review are well

established.   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

Mukasey, 

, 165-66 (2d Cir. 2008); Li Yong Cao v.

U.S. Dep’t of Justice, 

, 156 (2d Cir. 2005).

Adverse Credibility Determination

      The agency may, “[c]onsidering the totality of the

circumstances,” base a credibility finding on an asylum

applicant’s demeanor, and inconsistencies in his statements

and other record evidence regardless of whether the

inconsistencies go “to the heart of the applicant’s claim.”

8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

-

64.   Substantial evidence supports the agency’s

determination that Zheng was not credible.

      The agency reasonably relied in part on Zheng’s

demeanor, noting that he appeared to testify from a

memorized script.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi

v. Gonzales, 

, 81 n.1 (2d Cir. 2005).     The

agency’s demeanor finding and the overall credibility

determination are bolstered by record inconsistencies

related to what year Zheng was detained in China, where he

lived when he first arrived in the United States, whether

his sister was in compliance with her U.S. visa, and how he


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obtained a copy of his passport from China.     See Li Hua Lin

v. U.S. Dep’t of Justice, 

, 109 (2d Cir. 2006);

see also Xiu Xia 

.     Having questioned

Zheng’s credibility, the agency reasonably relied further on

his failure to provide certain evidence corroborating his

claim or rehabilitating his testimony.    See Biao Yang v.

Gonzales, 

, 273 (2d Cir. 2007).

    Given the demeanor, inconsistency, and corroboration

findings, the agency’s adverse credibility determination is

supported by substantial evidence, and is dispositive of

Zheng’s claims for asylum and withholding of removal.     See

8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 

, 156 (2d Cir. 2006).   Accordingly, we do not reach the

agency’s alternative basis for denying asylum—Zheng’s

failure to timely file his application.

Motion to Remand

    “A motion to remand that relies on newly available

evidence is held to the substantive requirements of a motion

to reopen.”   Li Yong 

.    Therefore, the

agency may deny a motion to remand based on “the movant’s

failure to . . . [provide] material, previously unavailable

evidence that would be introduced at a new hearing.”     

find no error in the BIA’s determination that

Zheng’s sister’s affidavit was previously available and

could have been presented at his hearing before the IJ.   See

8 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 

,

294 & n.3 (2d Cir. 2006) (per curiam) (looking to the date

on which the IJ closed the record as the date before which

the evidence must have been unavailable).   Accordingly, the

BIA did not abuse its discretion in denying Zheng’s motion

to remand.   See Li Yong Cao, 

.

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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