Filed: Aug. 22, 2017
Latest Update: Mar. 03, 2020
Summary: 16-2730 Zheng v. Sessions BIA Cheng, IJ A200 165 449 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: 16-2730 Zheng v. Sessions BIA Cheng, IJ A200 165 449 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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16-2730
Zheng v. Sessions
BIA
Cheng, IJ
A200 165 449
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 22nd day of August, two thousand seventeen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 JON O. NEWMAN,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _____________________________________
13
14 WENJIE ZHENG,
15 Petitioner,
16
17 v. 16-2730
18 NAC
19 JEFFERSON B. SESSIONS III, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: David X. Feng, Feng & Associates
25 P.C., New York, NY.
26
27 FOR RESPONDENT: Chad A. Readler, Acting Assistant
28 Attorney General; Anthony C.
29 Payne, Assistant Director;
30 Colette J. Winston, Trial
31 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice,
3 Washington, DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Wenjie Zheng, a native and citizen of China,
10 seeks review of a July 8, 2016, decision of the BIA affirming
11 a May 14, 2015, decision of an Immigration Judge (“IJ”) denying
12 Zheng’s application for asylum, withholding of removal, and
13 relief under the Convention Against Torture (“CAT”). In re
14 Wenjie Zheng, No. A200 165 449 (B.I.A. July 8, 2016), aff’g No.
15 A200 165 449 (Immig. Ct. N.Y. City May 14, 2015). We assume
16 the parties’ familiarity with the underlying facts and
17 procedural history in this case.
18 Under the circumstances of this case, we have reviewed the
19 IJ’s decision as supplemented by the BIA (i.e., including the
20 BIA’s treatment of the evidence submitted on appeal). See Yan
21 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well established. See
23 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162,
24 165-66 (2d Cir. 2008).
2
1 The governing REAL ID Act credibility standard provides
2 that the agency must “[c]onsider[] the totality of the
3 circumstances,” and may base a credibility finding on an
4 applicant’s “demeanor, candor, or responsiveness,” the
5 plausibility of his account, and inconsistencies in his or his
6 witness’s statements, “without regard to whether” they go “to
7 the heart of the applicant’s claim.” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
9 defer . . . to an IJ’s credibility determination unless . . . it
10 is plain that no reasonable fact-finder could make such an
11 adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
12 Further, “[a] petitioner must do more than offer a plausible
13 explanation for his inconsistent statements to secure relief;
14 he must demonstrate that a reasonable fact-finder would be
15 compelled to credit his testimony.” Majidi v. Gonzales, 430
16 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted).
17 For the reasons that follow, we conclude that substantial
18 evidence supports the agency’s finding that Zheng was not
19 credible.
20 First, the agency reasonably relied on the inconsistency
21 between Zheng’s testimony and evidence concerning his fine.
22 See Xiu Xia
Lin, 534 F.3d at 163-64. Zheng testified that his
3
1 mother paid a 4,000 renminbi fine to secure his release from
2 detention and had received only one receipt. However, Zheng
3 submitted two different receipts for the 4,000 renminbi
4 payment: one with a serial number of 4983; and a second with
5 a serial number of 4984. When asked why there were two
6 receipts, Zheng responded that he did not know and that his
7 mother may have received both receipts at the same time or
8 obtained the second receipt later. But the IJ reasonably
9 rejected this explanation because it did not compellingly
10 explain the inconsistency. See Majidi, 430 F.3d at 80-81.
11 Moreover, as the IJ observed, neither receipt listed Zheng’s
12 or his mother’s names and there was no information in the
13 receipts linking them to Zheng.
14 Second, the agency reasonably relied on the omission of any
15 mention of Zheng’s summons from his mother’s letters. See Xiu
16 Xia
Lin, 534 F.3d at 166-67 & n.3 (“An inconsistency and an
17 omission are . . . functionally equivalent” for credibility
18 purposes). Zheng testified that his mother refused to accept
19 the summons when the police tried to serve it at her home, but
20 that she later obtained the summons from the police station to
21 support Zheng’s asylum claim. However, Zheng’s mother’s
22 letters do not mention the summons and state only that the police
4
1 came looking for Zheng. When asked about the omission, Zheng
2 explained that his mother may not have mentioned the summons
3 because she did not accept it and did not think it was important.
4 The IJ was not required to accept this explanation. See Majidi,
5 430 F.3d at 80-81.
6 Third, the Government is correct that Zheng has waived
7 review of the IJ’s demeanor finding by failing to challenge it
8 in his brief, and that finding therefore stands as an
9 appropriate basis for the credibility determination. See
10 Norton v. Sam’s Club,
145 F.3d 114, 117 (2d Cir. 1998) (“Issues
11 not sufficiently argued in the briefs are considered waived and
12 normally will not be addressed on appeal.”); Xiu Xia Lin,
534
13 F.3d at 163-64 & n.2. Zheng also does not challenge the
14 agency’s treatment of his corroborating evidence or the BIA’s
15 treatment of his evidence submitted on appeal. And, although
16 Zheng challenges the inconsistency about whether he was struck
17 with a book in detention, neither the IJ nor the BIA relied on
18 this inconsistency to support the credibility determination.
19 Given the agency’s foregoing demeanor, omission, and
20 inconsistency findings, the totality of the circumstances
21 supports the adverse credibility determination. See Xiu Xia
22
Lin, 534 F.3d at 165-66. A reasonable adjudicator would not
5
1 be compelled to conclude otherwise. Id. at 167. The
2 credibility finding is dispositive of Zheng’s claims for
3 asylum, withholding of removal, and CAT relief because those
4 claims are based on the same discredited factual predicate.
5 See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
6
