13-499
Zheng v. Holder
BIA
Videla, IJ
A087 799 361
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 29th day of July, two thousand fourteen.
PRESENT:
ROSEMARY S. POOLER,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
DECHENG ZHENG,
Petitioner,
v. 13-499
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Ai Tong, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General, Blair T. O’Connor,
Assistant Director, Juria L. Jones,
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.
Decheng Zheng, a native and citizen of China, seeks
review of a January 22, 2013, decision of the BIA affirming
a July 7, 2011, decision of an Immigration Judge (“IJ”),
which denied his application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Decheng Zheng, No. A087 799 361 (B.I.A. Jan.
22, 2013), aff’g No. A087 799 361 (Immig. Ct. N.Y. City July
7, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA. See Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005);
see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
Cir. 2005). Accordingly, the IJ's finding that Zheng's
asylum application was untimely is not before us. We review
the agency's factual findings, including adverse credibility
findings, under the substantial evidence standard. 8 U.S.C.
§ 1252(b)(4)(B); see also Manzur v. U.S. Dep't of Homeland
Sec., 494 F.3d 281, 289 (2d Cir. 2007). Thus, we “defer
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. . . to an IJ's credibility determination unless, from the
totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse
credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008).
We conclude that the adverse credibility determination
is supported by substantial evidence. In finding Zheng not
credible, the IJ reasonably relied in part on Zheng’s
demeanor, noting that his testimony was often unresponsive
and that it seemed as though he was testifying from
memorized information. 8 U.S.C. § 1158(b)(1)(B)(iii); Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116-117 (2d
Cir. 2007) (“When reviewing an IJ’s credibility findings, we
afford particular deference in applying the substantial
evidence standard. This deference is at its highest point
where an IJ’s credibility determinations are based on
observation of the applicant’s demeanor[.]” (internal
quotations and citations omitted)). The IJ reasonably
rejected Zheng’s vague explanation that he was “very
nervous” and that his “heart [was] pounding,” especially in
light of Zheng’s apparent ability to recall other facts and
dates with a high degree of specificity. See Majidi v.
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Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (agency need not
credit explanations unless they would compel reasonable
fact-finder to do so).
The adverse credibility determination is further
supported by the IJ's identification of inconsistencies in
Zheng's testimony about when he made the decision to leave
China and the status of his passport. In particular, Zheng
gave varying testimony about when he decided to leave China,
despite also testifying that the decision was one of the
most important he made in his life. Zheng also offered
inconsistent testimony about the number of passports he had
possessed. Zheng argues that the IJ and BIA erred in
relying on these inconsistencies because they failed to
consider his explanations for the discrepancies in his
testimony. Zheng's contention is meritless. The IJ gave
Zheng several opportunities to explain his apparently
inconsistent answers during the hearing, considered Zheng's
explanations, and found them unpersuasive. Nothing in the
record would compel a reasonable fact-finder to credit
Zheng’s explanations. See Majidi, 430 F.3d at 80-81.
Nor did the IJ err in finding some of Zheng’s testimony
implausible. The implausibility finding was tethered to the
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record before the IJ. See Siewe v. Gonzales, 480 F.3d 160,
169 (2d Cir. 2007) (stating that, so long as an inference is
tethered to the record, the Court affords it deference). In
particular, the IJ reasonably relied on the disconnect
between various portions of Zheng’s own testimony and
information found in the State Department’s Country Report
to conclude that Zheng’s account of how the family planning
officials reacted to his wife missing a single IUD check-up
was implausible. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 341-42 (2d Cir. 2006) (noting that State
Department reports are usually the best available source of
information about conditions within a country).
Having identified valid grounds for questioning Zheng’s
credibility, the IJ reasonably relied on his failure to
provide adequate evidence to support his application. “An
applicant's failure to corroborate his testimony may bear on
credibility, because the absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question.” Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007). Here, although Zheng
submitted a letter from his wife, the IJ reasonably decided
to afford the letter little weight because Zheng’s wife was
an interested party who was not available for cross-
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examination. See Xiao Ji Chen, 471 F.3d at 342 (finding that
the weight afforded to the applicant's evidence lies largely
within the discretion of the agency). Additionally, Zheng
concedes that the IJ identified missing evidence, and does
not argue that the evidence was unavailable. Accordingly,
he has shown no error in the corroboration finding. See
Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009)
(recognizing that IJ may not be able to determine that
corroboration is needed until conclusion of hearing and
applicant has “burden of introducing such evidence without
prompting”).
Given the inconsistencies, problematic demeanor,
implausible testimony, and lack of corroboration, the
totality of the circumstances supports the agency’s adverse
credibility determination. See 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
at 167. Thus, the agency did not err in denying asylum,
withholding of removal, and CAT relief. See Paul v.
Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006) (recognizing
that withholding of removal and CAT claims necessarily fail
if the applicant is unable to show the objective likelihood
of persecution needed to make out an asylum claim and the
factual predicate for the claims is the same).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, petitioner’s
February 14, 2013 motion for a stay of removal in this
petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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