12-4528
Zheng v. Holder
BIA
Vomacka, IJ
A094 793 289
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 16th day of January, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 WEN ZHENG, AKA ZHENG WEN,
14 Petitioner,
15
16 v. 12-4528
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Adedayo O. Idowu, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Linda S. Wernery, Assistant
27 Director; Kerry A. Monaco, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, 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 Wen Zheng, a native and citizen of China, seeks review
6 of an October 26, 2012, decision of the BIA affirming the
7 February 7, 2011, decision of Immigration Judge (“IJ”) Alan
8 Vomacka, which denied his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Wen Zheng, No. A094 793 289
11 (B.I.A. Oct. 26, 2012), aff’g No. A094 793 289 (Immig. Ct.
12 N.Y. City Feb. 7, 2011). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this
14 case.
15 Under the circumstances of this case, we review both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” See Zaman v. Mukasey, 514 F.3d 233, 237 (2d
18 Cir. 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 We conclude that the adverse credibility determination
22 is supported by substantial evidence. For applications such
23 as Zheng’s, governed by the REAL ID Act of 2005, the agency
2
1 may, “[c]onsidering the totality of the circumstances,” base
2 a credibility finding on the plausibility of an applicant’s
3 account and inconsistencies in his statements, without
4 regard to whether they go “to the heart of the applicant’s
5 claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see
6 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
7 (per curiam). We “defer [ ] to an IJ’s credibility
8 determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia
11 Lin, 534 F.3d at 167.
12 The agency reasonably based its adverse credibility
13 determination on the inconsistency between Zheng’s written
14 statement and testimony regarding when he began practicing
15 Falun Gong in the United States, as the inconsistency called
16 into question the truthfulness of his asylum application.
17 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
18 167 (noting that, post-REAL ID Act, “an IJ may rely on any
19 inconsistency or omission in making an adverse credibility
20 determination as long as the ‘totality of the circumstances’
21 establishes that an asylum applicant is not credible”
22 (emphasis in original)); Xian Tuan Ye v. DHS, 446 F.3d 289,
3
1 295-96 (2d Cir. 2006) (per curiam) (holding that a material
2 inconsistency regarding the alleged persecution at the basis
3 of the claim constitutes substantial evidence). Moreover,
4 the agency reasonably declined to credit Zheng’s explanation
5 for the inconsistency given the explicit statements in his
6 application that he both practiced and supported Falun Gong.
7 See Matter of D-R-, 25 I&N Dec. 445, 455 (BIA 2011); Majidi
8 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
9 The agency also reasonably relied on the implausibility
10 of Zheng’s claim that he was unaware of the risks associated
11 with posting Falun Gong content on the Internet, given his
12 testimony that his business was managing the website and he
13 posted the information on a hidden page of the website to
14 avoid discovery. See Wensheng Yan v. Mukasey, 509 F.3d 63,
15 66 (2d Cir. 2007); Siewe v. Gonzales, 480 F.3d 160, 168-69
16 (2d Cir. 2007). Given Zheng’s questionable testimony, the
17 agency reasonably relied on his failure to provide adequate
18 corroborating evidence in support of his claims. See Biao
19 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The
20 agency was not required to credit letters from Zheng’s
21 father and friend, as they were not subject to cross-
22 examination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
4
1 F.3d 315, 342 (2d Cir. 2006) (explaining that the weight
2 afforded to the applicant’s evidence lies largely within the
3 discretion of the agency); In re H-L-H- & Z-Y-Z-, 25 I. & N.
4 Dec. 209, 215 (BIA 2010) (finding that unsworn letters from
5 the alien’s friends and family were insufficient to provide
6 substantial support for the alien’s claims because they were
7 interested witnesses not subject to cross-examination
8 (citations omitted)), overruled on other grounds by Hui Lin
9 Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012).
10 Given the inconsistencies and implausibility and
11 corroboration findings, the totality of the circumstances
12 supports the agency’s adverse credibility determination.
13 See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia
14 Lin, 534 F.3d at 167. Because the only evidence of a threat
15 to Zheng’s life or freedom depended upon his credibility,
16 the adverse credibility determination necessarily precludes
17 a grant of asylum, withholding of removal, or CAT relief.
18 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
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
23 this petition is DENIED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6