10-476-ag
Zheng v. Holder
BIA
Mulligan, IJ
A098 633 117
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24th day of February, two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 SHUANG LONG ZHENG,
14 Petitioner,
15
16 v. 10-476-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Richard M. Evans, Assistant
27 Director; Kevin J. Conway, Attorney,
28 Office of Immigration Litigation,
29 U.S. Department of Justice,
30 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
4 is DENIED.
5 Shuang Long Zheng, a native and citizen of the People’s
6 Republic of China, seeks review of the January 13, 2010,
7 order of the BIA affirming the March 13, 2008, decision of
8 Immigration Judge (“IJ”) Thomas J. Mulligan denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Zheng,
11 No. A098 633 117 (B.I.A. Jan. 13, 2010), aff’g No. A098 633
12 117 (Immig. Ct. N.Y. City March 13, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 BIA’s and IJ’s opinions, including portions of the IJ’s
17 decision not explicitly discussed by the BIA. See Yun-Zui
18 Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
19 applicable standards of review are well-established. See
20 8 U.S.C. § 1252(b)(4)(B) (2005); Xiu Xia Lin v. Mukasey,
21 534 F.3d 162, 167 (2d Cir. 2008); Corovic v. Mukasey, 519
22 F.3d 90, 95 (2d Cir. 2008).
2
1 Substantial evidence supports the agency’s adverse
2 credibility determination. For asylum applications governed
3 by the REAL ID Act of 2005, the agency may, considering the
4 totality of the circumstances, base a credibility finding on
5 an asylum applicant’s demeanor, the plausibility of his or
6 her account, and inconsistencies in his or her statements,
7 without regard to whether they go “to the heart of the
8 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) (2009).
9 The agency reasonably relied on inconsistencies between
10 Zheng’s testimony and a letter from Zheng’s father, as his
11 father mentioned that only he and his mother were present at
12 the time Zheng was arrested, but Zheng initially testified
13 that only his sister was present at his arrest. Also, the
14 letter did not mention that Zheng was served with a summons
15 by police officers after he left the country, but Zheng
16 submitted a summons as evidence and testified that his
17 father had received and mailed him the summons. See
18 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that an adverse
19 credibility determination may be based on “the consistency
20 between the applicant’s or witness’s written and oral
21 statements . . ., the internal consistency of each such
22 statement, the consistency of such statements with other
23 evidence of record . . ., and any inaccuracies or falsehoods
3
1 in such statements . . . .”); Majidi v. Gonzales, 430 F.3d
2 77, 80-81 (2d Cir. 2005) (finding that the agency need not
3 credit an applicant’s explanations for inconsistent
4 testimony unless those explanations would compel a
5 reasonable fact-finder to do so).
6 In addition, contrary to Zheng’s position, the agency’s
7 implausibility finding was tethered to record evidence, as
8 Zheng testified that he practiced Falun Gong only privately
9 at home or in his dormitory at school, that only his father
10 ever saw him practice, and that his father never told
11 anyone, but did not offer any explanation when asked how the
12 authorities might have become aware that he practiced Falun
13 Gong. See Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007)
14 (upholding an IJ’s finding that petitioner’s story was
15 inherently implausible when that finding was “tethered to
16 record evidence, and there [was] nothing else in the record
17 from which a firm conviction of error could properly be
18 derived”). The agency also reasonably relied on Zheng’s
19 demeanor in supporting its adverse credibility
20 determination, as the IJ noted that Zheng often looked to
21 the IJ’s reactions to his answers, that questions sometimes
22 had to be asked multiple times, that answers often had to be
23 forced out of him, and that his answers were not always
4
1 responsive to the questions posed, and cited specific
2 examples of Zheng’s demeanor during inconsistent testimony.
3 See Li Zu Guan v. I.N.S., 453 F.3d 129, 140 (2d Cir. 2006)
4 (stating that demeanor is “paradigmatically the sort of
5 evidence that a fact-finder is best positioned to
6 evaluate”); Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d
7 99, 109 (2d Cir. 2006) (noting that the Court “can be . . .
8 more confident in [its] review of observations about an
9 applicant's demeanor where . . . they are supported by
10 specific examples of inconsistent testimony”).
11 Finally, we need not reach the issue of the agency’s
12 reliance on a false statement that Zheng made to an
13 immigration officer in order to secure entry into the United
14 States because the agency articulated alternate and
15 sufficient bases, discussed above, for its adverse
16 credibility determination. See Lin, 453 F.3d at 107-11
17 (holding that remand is not required where we can
18 confidently predict that “the agency would reach the same
19 result” absent the alleged error).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
23 is VACATED, and any pending motion for a stay of removal in
5
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
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