Filed: Jun. 11, 2018
Latest Update: Mar. 03, 2020
Summary: 16-3506 Zhantiao Cheng v. Sessions BIA Schoppert, IJ A205 614 660 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
Summary: 16-3506 Zhantiao Cheng v. Sessions BIA Schoppert, IJ A205 614 660 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 ..
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16-3506
Zhantiao Cheng v. Sessions
BIA
Schoppert, IJ
A205 614 660
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 11th day of June, two thousand eighteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 GUIDO CALABRESI,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 ZHANTIAO CHENG,
14 Petitioner,
15
16 v. 16-3506
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Russell J.E.
27 Verby, Senior Litigation Counsel;
28 Kristin Moresi, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
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
4 is DENIED.
5 Petitioner Zhantiao Cheng, a native and citizen of the
6 People’s Republic of China, seeks review of a September 30,
7 2016, decision of the BIA affirming a July 27, 2015, decision
8 of an Immigration Judge (“IJ”) denying Zhantiao Cheng’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Zhantiao
11 Cheng, No. A 205 614 660 (B.I.A. Sept. 30, 2016), aff’g No. A
12 205 614 660 (Immig. Ct. N.Y. City July 27, 2015). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 only the IJ’s eligibility determination explicitly affirmed
17 by the BIA, not the IJ’s alternative discretionary denial of
18 asylum. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
19 520, 522 (2d Cir. 2005). The standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4)(B); See Y.C. v.
21 Holder,
741 F.3d 324, 332-33 (2d Cir. 2013).
2
1 Zhantiao Cheng alleged that he had a well-founded fear
2 of future persecution based on his participation in the China
3 Democracy Party (“CDP”) in the United States. He had the
4 burden to show that the claim was subjectively credible and
5 that the fear was objectively reasonable. Ramsameachire v.
6 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). An applicant
7 whose claim is based solely on events or activities in the
8 United States must show that the Chinese government is “aware
9 of his activities or likely to become aware of his
10 activities.” Hongsheng Leng v. Mukasey,
528 F.3d 135, 143
11 (2d Cir. 2008). These types of claims of future persecution
12 require careful analysis because they are “easy to
13 manufacture.”
Y.C., 741 F.3d at 338. Ultimately, Zhantiao
14 Cheng was required to show that he was credible and that the
15 Chinese government was aware or likely to become aware of his
16 activities. We find no error in the agency’s conclusions
17 that Zhantiao Cheng failed in both respects.
18 First, the agency reasonably concluded that Zhantiao
19 Cheng’s credibility was undermined by omissions and
20 inconsistencies. The agency may, “[c]onsidering the totality
21 of the circumstances,” base an adverse credibility
3
1 determination on inconsistencies or omissions in an
2 applicant’s oral and written statements and other record
3 evidence, regardless of whether any such discrepancies “go[]
4 to the heart of the applicant’s claim.” 8 U.S.C. §
5 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
6 163-64, 166-67 (2d Cir. 2008). “We defer . . . to an IJ’s
7 credibility determination unless . . . it is plain that no
8 reasonable fact-finder could make such an adverse credibility
9 ruling.” Xiu Xia
Lin, 534 F.3d at 167.
10 The agency reasonably relied on Zhantiao Cheng’s omission
11 of his arrest on his original asylum application and
12 inconsistencies in his testimony about his arrest and guilty
13 plea. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534
14 F.3d at 166-67 & n.3 (holding that “[a]n inconsistency and an
15 omission are . . . functionally equivalent” for credibility
16 purposes). Zhantiao Cheng’s omission of his arrest from his
17 asylum application cast doubt on his credibility and his lack
18 of straightforward answers about the charge and plea further
19 undermined his credibility. See Siewe v. Gonzales,
480 F.3d
20 160, 170 (2d Cir. 2007) (“[A] single false document or a
21 single instance of false testimony may (if attributable to
4
1 the petitioner) infect the balance of the alien’s
2 uncorroborated or unauthenticated evidence.”).
3 The IJ was not required to accept Zhantiao Cheng’s
4 explanation that he was nervous when he signed his
5 application. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
6 Cir. 2005) (“A petitioner must do more than offer a plausible
7 explanation for his inconsistent statements to secure relief;
8 he must demonstrate that a reasonable fact-finder would be
9 compelled to credit his testimony.” (quotation marks and
10 citation omitted)). Although Zhantiao Cheng argues that he
11 did not understand the term “arrest” and testified
12 consistently, the record supports the IJ’s conclusions given
13 Zhantiao Cheng’s seeming understanding that he had been
14 charged with a crime. See
Siewe, 480 F.3d at 167 (“Where
15 there are two permissible views of the evidence, the
16 factfinder’s choice between them cannot be clearly erroneous.
17 . . . Rather, a reviewing court must defer to that choice so
18 long as the deductions are not illogical or implausible.”
19 (citations and quotation marks omitted)).
20 Second, Zhantiao Cheng did not otherwise meet his burden
21 of establishing that Chinese authorities were aware or likely
5
1 to become aware of his political activities. See Hongsheng
2 Leng, 528 F.3d at 143. The IJ declined to credit a letter
3 from Zhantiao Cheng’s mother stating that Chinese police were
4 searching for him. Zhantiao Cheng has waived any challenge
5 to this determination. See Yueqing Zhang v. Gonzales, 426
6 F.3d 540, 545 n.7 (2d Cir. 2005) (providing that issues not
7 raised in an opening brief are waived). Moreover, the IJ did
8 not err in giving the letter little weight, see Y.C.,
741
9 F.3d at 334 (deferring to IJ’s decision not to credit letter
10 from spouse in China). Further, Zhantiao Cheng’s claim that
11 articles he published online about the CDP would be discovered
12 by Chinese authorities, absent more concrete evidence, is
13 “pure speculation.”
Id. Zhantiao Cheng’s failure to meet
14 his burden for asylum also precludes him from meeting the
15 higher standards for withholding of removal and CAT relief.
16
Id. at 335.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of removal
19 that the Court previously granted in this petition is VACATED,
20 and any pending motion for a stay of removal in this petition
21 is DISMISSED as moot. Any pending request for oral argument
6
1 in this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7
