12-3309
Cui v. Holder
BIA
Cheng, IJ
A087 462 981
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 9th day of May, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
ZHENGGEN CUI,
Petitioner,
v. 12-3309
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gregory Marotta, Law Office of
Gregory Marotta, Vernon, New Jersey.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Cindy S. Ferrier, Assistant
Director; Surell Brady, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Zhenggen Cui, a native and citizen of China,
seeks review of a July 26, 2012, decision of the BIA
affirming a July 7, 2009, decision of Immigration Judge
(“IJ”) Mary Cheng, denying Cui’s application for asylum,
withholding of removal and relief under the Convention
Against Torture (“CAT”). We assume the parties’ familiarity
with the underlying facts and procedural history of this
case.
Under the circumstances of this case, we have reviewed
both the BIA’s and the IJ’s decisions. See Zaman v.
Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
66 (2d Cir. 2008).
For applications like this one, governed by the REAL ID
Act of 2005, the agency may base a credibility finding on an
asylum applicant’s demeanor, the plausibility of his
account, and inconsistencies in his statements, without
regard to whether they go “to the heart of the applicant’s
2
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Analyzed under this
standard, the agency’s adverse credibility determination is
supported by substantial evidence.
As an initial matter, Cui has not challenged the
agency’s reliance on the negative demeanor finding, his
inconsistent testimony as to the length of his leave from
work, or the omission of the reason for his first trip to
the United States from the asylum application. These
findings alone provide support for the adverse credibility
determination. See Shunfu Li v. Mukasey, 529 F.3d 141,
146-47 (2d Cir. 2008).
As to the findings Cui has challenged, the agency
reasonably relied on his failure to include his broken rib
and overnight hospital stay in the statement in support of
his asylum application. Although Cui argues that he has
explained these omissions, a reasonable fact-finder would
not be compelled to credit his assertion that he did not
think it was necessary to include these details. See Majidi
v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that
the agency need not credit an applicant’s explanations
unless those explanations would compel a reasonable
fact-finder to do so). We decline to consider Cui’s
3
unexhausted contention that he omitted the broken rib from
the asylum statement because there is no medical treatment
for such a fracture. See Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).
Cui notes that the asylum statement generally asserted
that he had been injured and sought medical treatment.
However, given that the alleged mistreatment he suffered
during the detention was his sole claim of past persecution,
the agency’s reliance on these omissions was reasonable.
See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
295 (2d Cir. 2006).
The agency also reasonably relied on Cui’s inconsistent
testimony as to when he was fired from his job. The agency
was not compelled to accept his explanation – that he
returned to the workplace after he was fired to finish and
organize some of his work – considering that Cui did not
explain why he needed to finish or organize anything if he
had been terminated the month before. See Majidi, 430 F.3d
at 80-81. Cui has also failed to provide a compelling
explanation for his inconsistent testimony as to whether he
knew who informed authorities about his statements.
4
Having found Cui not credible, the agency reasonably
noted that his failure to provide corroboration further
undermined his credibility. See Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007). The letter from his father
did not provide adequate corroboration because it omitted
both his broken rib and his hospitalization, and Cui could
not explain these omissions. Although Cui emphasizes that
he provided medical documentation that he suffered a broken
rib, the agency found that this evidence did not indicate
how he broke his rib, and the weight afforded to the
applicant’s evidence lies largely within the discretion of
the agency. See Xiao Ji Chen v. U.S. Dep't of Justice, 471
F.3d 315, 342 (2d Cir. 2006)
Accordingly, given the unchallenged findings, the
inconsistencies relating to Cui’s sole allegation of past
harm, and the lack of corroboration, the agency’s adverse
credibility determination is supported by substantial
evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534 F.3d at 167.
Having reasonably found that Cui failed to establish
eligibility for asylum on credibility grounds, the agency
did not err in denying withholding of removal and relief
under the CAT, as these claims shared the same factual
5
predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6