12-4321
Zheng v. Holder
BIA
Poczter, IJ
A087 982 254
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 4th day of April, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN QING ZHENG,
14 Petitioner,
15
16 v. 12-4321
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Andy Wong, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Emily Anne Radford,
27 Assistant Director; Craig A. Newell,
28 Jr., Trial Attorney; Thanh Khiet T.
29 Nguyen, Law Clerk; Office of
30 Immigration Litigation, United States
31 Department of Justice, Washington,
32 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 Petitioner Jian Qing Zheng, a native and citizen of
6 China, seeks review of an October 12, 2012 decision of the
7 BIA affirming a July 18, 2011 decision of Immigration Judge
8 (“IJ”) Aviva L. Poczter, denying Zheng’s application for
9 asylum, withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Jian Qing Zheng,
11 No. A087 982 254 (B.I.A. Oct. 12, 2012), aff’g No. A087 982
12 254 (Immig. Ct. N.Y. City July 18, 2011). 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 IJ’s decision directly. See Shunfu Li v. Mukasey, 529 F.3d
17 141, 146 (2d Cir. 2008). The applicable standards of review
18 are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
19 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 For applications like this one, governed by the REAL ID
21 Act, the agency may base a credibility finding on an asylum
22 applicant’s demeanor, the plausibility of his account, and
23 inconsistencies in his statements, without regard to whether
2
1 they go “to the heart of the applicant's claim.” 8 U.S.C.
2 § 1158(b)(1)(B)(iii); Matter of J–Y–C–, 24 I. & N. Dec. 260,
3 265 (B.I.A. 2007). Analyzed under these standards, the
4 agency’s adverse credibility determination is supported by
5 substantial evidence.
6 In finding Zheng not credible, the IJ reasonably relied
7 on the inconsistency between his testimony and his statement
8 in support of his asylum application as to whether he was
9 questioned by the police when they raided his church. This
10 inconsistency was particularly significant because this
11 event was Zheng’s only allegation of past persecution, and
12 he was unable to provide any explanation for the variation
13 between his accounts. Because the argument was not raised
14 below, we decline to consider Zheng’s assertion that the
15 inconsistency is the result of a translation error in his
16 statement. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
17 104, 107 n.1 (2d Cir. 2007).
18 The IJ also reasonably relied on the inconsistencies in
19 the record as to the immigration status of Zheng’s
20 stepmother, and whether anyone was arrested when the police
21 came to the church he was attending. Zheng was unable to
22 reconcile his inconsistent statements about his stepmother’s
3
1 citizenship, and we decline to consider the challenges to
2 the credible fear interview he has raised for the first time
3 in his appellate brief. See Lin Zhong, 480 F.3d at 107 n.
4 1.
5 In addition to these inconsistencies, the IJ reasonably
6 found several aspects of Zheng’s testimony to be
7 implausible. Notably, Zheng testified that the church he
8 attended was registered, and therefore “legal” in China, but
9 was unable to explain why the police would harass or arrest
10 members of a registered church.
11 Further, Zheng testified that he practiced Christianity
12 in the United States but was unable to name any Christian
13 holiday. Although a credibility finding based on an
14 applicant’s lack of doctrinal knowledge may be erroneous,
15 here, the IJ did not err in relying in part on Zheng’s
16 inability to identify any Christian holidays, given his
17 testimony that he had attended church regularly since
18 entering the United States. See Rizal v. Gonzales, 442 F.3d
19 84, 90 (2d Cir. 2006) (rejecting “the rationale that a
20 certain level of doctrinal knowledge is necessary in order
21 to be eligible for asylum” on account of a religious
22 affiliation, but recognizing that there may be “instances in
4
1 which the nature of an individual applicant’s account would
2 render his lack of a certain degree of doctrinal knowledge
3 suspect and could therefore provide substantial evidence in
4 support of an adverse credibility finding”).
5 Moreover, the IJ reasonably found implausible Zheng’s
6 testimony that his family was unable to provide a letter in
7 support of his application due to his father’s illiteracy,
8 because he also testified that his father had applied for a
9 visa on his behalf. A reasonable fact-finder would not be
10 compelled to credit Zheng’s explanation that his father had
11 obtained help in applying for a visa, because this did not
12 explain why his father could not also have found help to
13 prepare a letter. See Wensheng Yan v. Mukasey, 509 F.3d 63,
14 67 (2d Cir. 2009) (finding that, where the IJ’s findings are
15 “tethered to record evidence, and there is nothing else in
16 the record from which a firm conviction of error could
17 properly be derived,” the inherent implausibility finding
18 should not be disturbed); Majidi v. Gonzales, 430 F.3d 77,
19 80-81 (2d Cir. 2005) (holding that the agency need not
20 credit an applicant’s explanations unless those explanations
21 would compel a reasonable fact-finder to do so).
22 Accordingly, substantial evidence supports the agency’s
23 adverse credibility determination, see 8 U.S.C.
5
1 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167, and it
2 is not necessary to reach the IJ’s alternative finding that,
3 even if credible, Zheng failed to meet his burden of proof.
4 Having reasonably found on credibility grounds that Zheng
5 failed to establish eligibility for asylum, the agency did
6 not err in denying withholding of removal and relief under
7 the CAT, as these claims shared the same factual predicate.
8 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue
9 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d
10 Cir. 2005).
11 For the foregoing reasons, the petition for review is
12 DENIED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
17
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