13-304
Zheng v. Holder
BIA
Zagzoug, IJ
A087 908 970
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 19th day of January, two thousand sixteen.
5
6
7 PRESENT:
8 ROSEMARY S. POOLER,
9 RICHARD C. WESLEY,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 HUI YING ZHENG,
15 Petitioner,
16
17 v. 13-304
18 NAC
19 LORETTA E. LYNCH1, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of Michael
25 Brown, Esq., New York, NY.
1
Loretta E. Lynch is automatically substituted as the
respondent in this case pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
1
2 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
3 General; Carl McIntyre, Assistant
4 Director; Allen W. Hausman, Senior
5 Litigation Counsel, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Hui Ying Zheng, a native and citizen of the People’s
15 Republic of China, seeks review of an January 8, 2013,
16 decision of the BIA affirming an Immigration Judge’s (“IJ”)
17 March 7, 2011, decision, denying her application for asylum,
18 withholding of removal, and relief under the Convention
19 Against Torture (“CAT”). In re Hui Ying Zheng, No. A087 908
20 970 (B.I.A. Jan. 8, 2013), aff’g A087 908 970 (Immig. Ct.
21 N.Y. City Mar. 7, 2011). We assume the parties’ familiarity
22 with the underlying facts and procedural history in this
23 case.
24 Under the circumstances of this case, we review the
25 IJ’s decision as modified by the BIA decision. See Xue Hong
26 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
27 2005). The applicable standards of review are well
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
2 Weng v. Holder, 562 F.3d 510, 513-14 (2d Cir. 2009).
3 For applications such as Zheng’s, governed by the REAL
4 ID Act of 2005, the agency may, “considering the totality of
5 the circumstances,” base a credibility finding on the
6 applicant’s “demeanor, candor, or responsiveness,” the
7 plausibility of his account, and inconsistencies in his
8 statements, without regard to whether they go “to the heart
9 of the applicant’s claim.” See 8 U.S.C.
10 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
11 167 (2d Cir. 2008) (per curiam). We “defer . . . to an IJ’s
12 credibility determination unless, from the totality of the
13 circumstances, it is plain that no reasonable fact-finder
14 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
15 Here, the IJ reasonably based the adverse credibility
16 determination on Zheng’s inconsistent testimony and
17 inconsistencies among her testimony, her witness’s testimony
18 and her documentary evidence. As the agency found, the
19 signatures on the letter from Zheng’s church did not match
20 her description, and the date of her baptismal certificate
21 did not match the date provided by her witness. The IJ
22 reasonably rejected Zheng’s explanation for the
3
1 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
2 (2d Cir. 2005).
3 Although Zheng submitted corroborating letters from her
4 father and two fellow church members in China, the IJ
5 reasonably found that evidence insufficient to establish
6 Zheng’s eligibility for relief absent credible testimony,
7 because the authors were interested parties and unavailable
8 for cross-examination. See Xiao Ji Chen v. U.S. Dep’t of
9 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the weight
10 accorded to documentary evidence lies largely within
11 agency’s discretion); see also Matter of H-L-H- & Z-Y-Z-, 25
12 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished
13 evidentiary weight to letters from “relatives and friends,”
14 because they were from interested witnesses not subject to
15 cross-examination), rev’d on other grounds by Hui Lin Huang
16 v. Holder, 677 F.3d 130 (2d Cir. 2012). Ultimately, the
17 negative demeanor finding, inconsistencies between the
18 testimony, witness testimony, and documentary evidence, and
19 lack of corroborating evidence provide substantial evidence
20 in support of the agency’s adverse credibility
21 determination. Xiu Xia Lin, 534 F.3d at 167.
22 The only evidence of a threat to Zheng’s life or
4
1 freedom depended upon her credibility: the adverse
2 credibility determination in this case necessarily precludes
3 success on her claims for asylum, withholding of removal and
4 CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
5 Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
5