Chun Qi Zheng v. Holder

12-550
Zheng v. Holder
BIA
Schoppert, IJ
A087 438 732
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of September, two thousand thirteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 CHUN QI ZHENG,
14 Petitioner,
15
16 v. 12-550
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Ai Tong, New York, New York.
24
25 FOR RESPONDENT: Stuart Delery, Acting Assistant
26 Attorney General; Nancy E. Friedman,
27 Senior Litigation Counsel; Benjamin
28 J. Zeitlin, Trial Attorney,; Erin
29 Griffith, Law Clerk, Civil Division,
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 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Chun Qi Zheng, a native and citizen of China, seeks

6 review of a January 25, 2012, decision of the BIA affirming

7 the August 11, 2010, decision of Immigration Judge (“IJ”)

8 Douglas Schoppert, denying his application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Chun Qi Zheng, No. A087 438

11 732 (B.I.A. Jan. 25, 2012), aff’g No. A087 438 732 (Immig.

12 Ct. N.Y. City Aug. 10, 2010). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 of this case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as supplemented by the BIA. See Yan Chen

17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

18 applicable standards of review are well-established. See

19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

20 562 F.3d 510, 513 (2d Cir. 2009).

21 We conclude that substantial evidence supports the

22 agency’s finding that Zheng’s testimony was not credible,

2
 1 based on inconsistencies between his statements in an asylum

2 interview and his testimony at the March 2010 merits

3 hearing. The agency properly considered the totality of the

4 circumstances and determined that the inconsistencies

5 rendered Zheng’s testimony incredible. See 8 U.S.C. §

6 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

7 166 (2d Cir. 2008) (per curiam).

8 Zheng was given the opportunity to explain the

9 inconsistencies, and the agency was not compelled to accept

10 his explanations – chiefly, that he was nervous at the

11 asylum interview. See Majidi v. Gonzales, 430 F.3d 77, 80-

12 81 (2d Cir. 2005). Moreover, the agency reasonably relied

13 upon the record of the asylum interview, which consisted of

14 a type-written account of the questions posed and Zheng’s

15 answers. The asylum interview occurred after Zheng had

16 submitted his application, and he provided his own

17 interpreter. Under these circumstances, the record of the

18 interview was reliable. See Diallo v. Gonzales, 445 F.3d

19 624, 631-32 (2d Cir. 2006); see also Ming Zhang v. Holder,

20 585 F.3d 715, 725 (2d Cir. 2009); Ramsameachire v. Ashcroft,

21 357 F.3d 169, 180-81 (2d Cir. 2004).

22

3
 1 To the extent Zheng argues that the agency violated his

2 right to due process by not considering his corroborating

3 evidence, the claim is without merit. The record

4 establishes that the IJ did review the evidence and acted

5 within his discretion in affording it little weight. See

6 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

7 Cir. 2006). The IJ’s refusal to credit unauthenticated

8 documents was not error, where Zheng’s testimony was

9 otherwise not credible. See Zhou Yun Zhang v. U.S. INS, 386

10 F.3d 66, 78 (2d Cir. 2004), overruled on other grounds by

11 Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d

12 Cir. 2007).

13 Finally, because Zheng’s withholding of removal and CAT

14 claims depend on the same factual predicate as the asylum

15 claim, the adverse credibility determination also is

16 dispositive of those forms of relief from removal. See Paul

17 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang

18 v. U.S. Dep't of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

19 For the foregoing reasons, the petition for review is

20 DENIED. As we have completed our review, any stay of

21 removal that the Court previously granted in this petition

22 is VACATED, and any pending motion for a stay of removal in

4
1 this petition is DISMISSED as moot. Any pending request for

2 oral argument in this petition is DENIED in accordance with

3 Federal Rule of Appellate Procedure 34(a)(2), and Second

4 Circuit Local Rule 34.1(b).

5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk

5