Qing Hui Zheng v. Lynch

15-2118 Zheng v. Lynch BIA Van Wyke, IJ A087 468 196 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 2 At a stated term of the United States Court of Appeals 3 for the Second Circuit, held at the Thurgood Marshall 4 United States Courthouse, 40 Foley Square, in the City of 5 New York, on the 14th day of November, two thousand sixteen. 6 7 PRESENT: 8 REENA RAGGI, 9 SUSAN L. CARNEY, 10 CHRISTOPHER F. DRONEY, 11 Circuit Judges. 12 _____________________________________ 13 14 QING HUI ZHENG, AKA QINGHUI 15 ZHENG, 16 Petitioner, 17 18 v. 15-2118 19 NAC 20 LORETTA E. LYNCH, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Richard Tarzia, Law Office of 26 Richard Tarzia, Belle Mead, New 27 Jersey. 28 29 FOR RESPONDENT: Benjamin C. Mizer, Principal 30 Deputy Assistant Attorney General; 31 Blair T. O’Connor, Assistant 1 Director; Jane T. Schaffner, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 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 10 is DENIED. 11 Petitioner Qing Hui Zheng, a native and citizen of 12 China, seeks review of a June 10, 2015, decision of the 13 BIA, affirming a November 6, 2013, decision of an 14 Immigration Judge (“IJ”) denying Zheng’s application for 15 asylum, withholding of removal, and relief under the 16 Convention Against Torture (“CAT”). In re Qing Hui Zheng, 17 No. A087 468 196 (B.I.A. June 10, 2015), aff’g No. A087 468 18 196 (Immig. Ct. N.Y. City Nov. 6, 2013). We assume the 19 parties’ familiarity with the underlying facts and 20 procedural history in this case. 21 Under the circumstances of this case, we have reviewed 22 both the BIA’s and IJ’s decisions “for the sake of 23 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 24 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 25 review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu 26 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 1 The agency may, “[c]onsidering the totality of the 2 circumstances,” base a credibility finding on an asylum 3 applicant’s demeanor and inconsistencies in his statements 4 and other record evidence “without regard to whether” those 5 inconsistencies go “to the heart of the applicant’s claim.” 6 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 7 166-67. Substantial evidence supports the agency’s 8 determination that Zheng was not credible. 9 The agency did not err in basing its credibility 10 determination on Zheng’s inconsistent statements and 11 omission regarding his first entry into the United States. 12 See Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and 13 an omission are . . . functionally equivalent.”). Both in 14 his application and at his initial hearing, Zheng proffered 15 June 2008 as the date of his sole entry into the United 16 States. When confronted at a later hearing with a 2000 17 removal order for “Sae-Pai Sompong,” a purported native of 18 Thailand, and evidence that Zheng’s fingerprints matched 19 those of Sompong, Zheng admitted to the prior entry. 20 Zheng’s explanations—that he forgot the entry, was under a 21 lot of pressure, and remembered later—were unavailing and 22 further undermined his credibility, particularly as they 23 contradicted his other explanation that he had told his 1 attorney about the entry. See Majidi v. Gonzales, 430 F.3d 2 77, 80 (2d Cir. 2005) (“A petitioner must do more than 3 offer a plausible explanation for his inconsistent 4 statements to secure relief; he must demonstrate that a 5 reasonable fact-finder would be compelled to credit his 6 testimony.” (internal quotation marks and emphasis 7 omitted)). This inconsistency alone is sufficient support 8 for the adverse credibility determination. See Siewe v. 9 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“So a single 10 false document or a single instance of false testimony may 11 (if attributable to the petitioner) infect the balance of 12 the alien’s uncorroborated or unauthenticated evidence.”). 13 The adverse credibility determination is bolstered by 14 the IJ’s findings regarding Zheng’s demeanor and lack of 15 corroborating evidence. Particular deference is given to 16 the trier of fact’s assessment of demeanor. See Majidi, 17 430 F.3d at 81 n.1. And, the IJ reasonably found that 18 Zheng’s medical evidence did not corroborate his alleged 19 memory loss, as it reflected a depressive disorder and 20 anxiety, but stated Zheng had no memory problems. See Biao 21 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 22 applicant’s failure to corroborate his or her testimony may 23 bear on credibility, because the absence of corroboration 1 in general makes an applicant unable to rehabilitate 2 testimony that has already been called into question.”). 3 Given this inconsistency, the contradictory 4 explanations, and the related demeanor and corroboration 5 problems, the IJ reasonably found Zheng not credible. See 6 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 7 F.3d at 165-66; Siewe, 480 F.3d at 170. The adverse 8 credibility determination is dispositive of asylum, 9 withholding of removal, and CAT relief because all three 10 claims are based on the same factual predicate. See Paul 11 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 12 For the foregoing reasons, the petition for review is 13 DENIED. 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk