LingBin Zheng v. Lynch

14-1886 Zheng v. Lynch BIA Bukszpan, IJ A089 097 441 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 TO 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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 25th day of November, two thousand fifteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 LINGBIN ZHENG, AKA BING LIN, 14 Petitioner, 15 16 v. 14-1886 17 NAC 18 19 LORETTA E. LYNCH, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Lee Ratner, Law Offices of Michael 25 Brown, New York, New York. 26 27 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 28 Attorney General; John S. Hogan, 1 Assistant Director; David H. 2 Wetmore, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review is 10 DENIED. 11 LingBin Zheng, a native and citizen of China, seeks review 12 of a May 16, 2014 decision of the BIA affirming the November 13 28, 2011 decision of an Immigration Judge (“IJ”), which denied 14 his application for asylum, withholding of removal, and relief 15 pursuant to the Convention Against Torture (“CAT”). In re 16 LingBin Zheng, No. A089 097 441 (B.I.A. May 16, 2014), aff’g 17 No. A089 097 441 (Immig. Ct. N.Y. City Nov. 28, 2011). We assume 18 the parties’ familiarity with the underlying facts and 19 procedural history in this case. 20 Under the circumstances of this case, we have reviewed both 21 the decisions of the IJ and the BIA “for the sake of 22 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 23 524, 528 (2d Cir. 2006). The applicable standards of review 2 1 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin 2 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 3 For asylum applications like Zheng’s, governed by the REAL 4 ID Act of 2005, the agency may, “[c]onsidering the totality of 5 the circumstances,” base a credibility determination on 6 inconsistencies in an asylum applicant’s statements and other 7 record evidence, “without regard to whether” the 8 inconsistencies go “to the heart of the applicant’s claim.” 8 9 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 10 credibility determination unless, from the totality of the 11 circumstances, it is plain that no reasonable fact-finder could 12 make such an adverse credibility ruling.” Xiu Xia Lin v. 13 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). 14 Substantial evidence supports the agency’s adverse credibility 15 determination. 16 The agency reasonably considered an inconsistency between 17 Zheng’s testimony and asylum application concerning when he was 18 arrested. Zheng’s asylum application asserted that he was 19 arrested in December 2007 for distributing Falun Gong leaflets, 20 but he testified that the arrest took place in July 2007. The 21 agency was not compelled to credit his explanation that he was 3 1 nervous, especially because he confirmed on direct examination 2 that he was “sure” that he was arrested in July 2007. See Majidi 3 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that 4 the agency need not credit an applicant’s explanations for 5 inconsistent testimony unless those explanations would compel 6 a reasonable fact-finder to do so). 7 The agency also reasonably relied on an inconsistency 8 regarding Zheng’s location when authorities confronted his 9 family about their failure to cooperate with the confiscation 10 of their land. He repeatedly testified that he was not inside 11 his home when the authorities entered; that testimony 12 conflicted with his asylum application and his father’s 13 affidavit, both of which stated that he was having breakfast 14 inside his home when authorities entered. Confronted with this 15 inconsistency, Zheng conceded that he may have been eating 16 breakfast with his father after all. But, given Zheng’s 17 repeated assertions otherwise, the agency was not compelled to 18 ignore the inconsistency. See Majidi, 430 F.3d at 80-81. The 19 agency reasonably relied further on Zheng’s inconsistent 20 statements regarding whether he was aware of the intended use 21 of his family’s confiscated land. 4 1 Given these inconsistency findings, the totality of the 2 circumstances supports the agency’s adverse credibility 3 determination. See Xiu Xia Lin, 534 F.3d at 167; see also Tu 4 Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (emphasizing 5 that “even where an IJ relies on discrepancies or lacunae that, 6 if taken separately, concern matters collateral or ancillary 7 to the claim, . . . the cumulative effect may nevertheless be 8 deemed consequential by the fact-finder”). That determination 9 is dispositive of asylum, withholding of removal, and CAT 10 relief, as those claims are based on the same factual predicate. 11 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of removal 14 that the Court previously granted in this petition is VACATED, 15 and any pending motion for a stay of removal in this petition 16 is DISMISSED as moot. Any pending request for oral argument 17 in this petition is DENIED in accordance with Federal Rule of 18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 19 34.1(b). 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 5