Filed: Jan. 10, 2017
Latest Update: Mar. 03, 2020
Summary: 15-2206 Zheng v. Lynch BIA Christensen, IJ A200 284 133 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: 15-2206 Zheng v. Lynch BIA Christensen, IJ A200 284 133 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 ..
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15-2206
Zheng v. Lynch
BIA
Christensen, IJ
A200 284 133
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 10th day of January, two thousand seventeen.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 DEQING ZHENG, AKA DE QUIN ZHENG,
14 AKA DE QIN ZHENG,
15 Petitioner,
16
17 v. 15-2206
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Alexander Kwok-Ho Yu, New York, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Terri J.
28 Scadron, Assistant Director;
29 Christina P. Greer, Trial Attorney;
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5
6 Petitioner Deqing Zheng, a native and citizen of the
7 People’s Republic of China, seeks review of a June 12, 2015,
8 decision of the BIA affirming an October 31, 2013, decision of
9 an Immigration Judge (“IJ”) denying Zheng’s application for
10 asylum, withholding of removal, and relief under the Convention
11 Against Torture (“CAT”). In re Deqing Zheng, No. A200 284 133
12 (B.I.A. June 12, 2015), aff’g No. A200 284 133 (Immig. Ct. N.Y.
13 City Oct. 31, 2013). We assume the parties’ familiarity with
14 the underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed both
16 the IJ’s and BIA’s decisions. See Yun-Zui Guan v. Gonzales,
17 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
18 review are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu
19 Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
20 For asylum applications like Zheng’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
22 circumstances,” base a negative credibility finding on an
2
1 asylum applicant’s demeanor and inconsistencies or omissions
2 in the applicant’s statements and other record evidence. 8
3 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
4 “We defer . . . to an IJ’s credibility determination unless,
5 from the totality of the circumstances, it is plain that no
6 reasonable fact-finder could make such an adverse credibility
7 ruling.” Xiu Xia
Lin, 534 F.3d at 167. Substantial evidence
8 supports the adverse credibility determination in this case.
9 The IJ reasonably found that Zheng’s hesitant and
10 unresponsive demeanor indicated a lack of credibility, rather
11 than “mere nervousness,” pointing to specific instances in
12 which Zheng was unresponsive. See Jin Chen v. U.S. Dep’t of
13 Justice,
426 F.3d 104, 113 (2d Cir. 2005) (deferring to agency’s
14 demeanor finding “in recognition of the fact that the IJ’s
15 ability to observe the witness’s demeanor places [him] in the
16 best position to evaluate whether apparent problems in the
17 witness’s testimony suggest a lack of credibility or, rather,
18 can be attributed to an innocent cause such as difficulty
19 understanding the question”).
20 The adverse credibility determination is further supported
21 by a record riddled with inconsistencies and omissions. See
3
1 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67
2 & n.3 (noting that “[a]n inconsistency and an omission
3 are . . . functionally equivalent” for credibility purposes).
4 For example, Zheng testified inconsistently regarding whether
5 his passport was stamped by Chinese airport officials. His
6 asylum application and initial testimony reported that he
7 received treatment at a hospital for his injuries; but when
8 asked whether he had documentation of that treatment, he changed
9 his claim to say that he was treated at a local clinic that did
10 not provide documentation. Zheng also testified
11 inconsistently regarding the time between his July 2010 arrest
12 and May 2011 departure from China. His asylum application
13 implied that he reported to the police weekly, and his direct
14 testimony was that he lived with his father for that entire
15 period, but Zheng subsequently testified that he reported to
16 the police only twice and fled to another location to avoid
17 arrest. The agency was not compelled to accept Zheng’s
18 explanations for these discrepancies. See Majidi v. Gonzales,
19
430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner ‘must do more than
20 offer a “plausible” explanation for his inconsistent statements
21 to secure relief; he must demonstrate that a reasonable
4
1 fact-finder would be compelled to credit his testimony.’”
2 (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 76 (2d Cir.
3 2004))).
4 The agency also reasonably concluded that Zheng’s
5 corroborating evidence was insufficient to rehabilitate his
6 credibility. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d
7 Cir. 2007). Zheng’s baptism certificate and the letter from
8 his church in New York were entitled to diminished weight
9 because no witnesses were available for cross examination. See
10 Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010),
11 rev’d on other grounds sub nom. Hui Lin Huang v. Holder, 677
12 F.3d 130 (2d Cir. 2012); see also Y.C. v. Holder,
741 F.3d 324,
13 334 (2d Cir. 2013). And Zheng failed to provide letters from
14 his father or friend in China who introduced him to
15 Christianity; or letters or testimony from his aunt or fellow
16 church members in New York. See Biao
Yang, 496 F.3d at 273.
17 Given the demeanor finding, multiple inconsistencies and
18 omissions, and the lack of corroborating evidence, the totality
19 of the circumstances supports the credibility ruling. See 8
20 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167.
21 Because Zheng’s claims for relief were all based on the same
5
1 factual predicate, the adverse credibility determination is
2 dispositive of asylum, withholding of removal, and CAT relief.
3 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O=Hagan Wolfe, Clerk
6
