Jin Biao Zheng v. Holder

10-2907-ag
Zheng v. Holder
BIA
Weisel, IJ
A094 938 706
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22nd day of November, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT A. KATZMANN,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 JIN BIAO ZHENG,
14 Petitioner,
15
16 v. 10-2907-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Mark C. Walters, Senior
28 Litigation Counsel, Office of
29 Immigration Litigation; Zoe J.
30 Heller, Civil Division, U.S.
31 Department of Justice, Washington,
32 D.C.
 1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Jin Biao Zheng, a native and citizen of

6 China, seeks review of the June 22, 2010, order of the BIA

7 affirming the July 7, 2008, decision of an Immigration Judge

8 (“IJ”) denying his application for asylum, withholding of

9 removal, and CAT relief. In re Jin Biao Zheng, No. A094 938

10 706 (B.I.A. June 22, 2010), aff’g No. A094 938 706 (Immig.

11 Ct. N.Y. City July 7, 2008). We assume the parties’

12 familiarity with the underlying facts and procedural history

13 in this case.

14 Under the circumstances of this case, we have reviewed

15 the IJ’s and the BIA’s decisions, including the portions of

16 the IJ’s decision not explicitly discussed by the BIA. See

17 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

18 The applicable standards of review are well-established.

19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

20 F.3d 510, 513 (2d Cir. 2009).

21 The agency’s adverse credibility determination is

22 supported by substantial evidence, given inconsistencies

23 between Zheng’s testimony and his written asylum

24 application. See 8 U.S.C. § 1158(b)(1)(B)(iii). While

2
 1 Zheng argues, relying on Secaida-Rosales v. INS, 331 F.3d

2 297 (2d Cir. 2003), that the IJ committed legal error by

3 using an “inappropriately stringent standard,” the REAL ID

4 Act, which governs this case, supersedes Secaida-Rosales;

5 consequently, the IJ did not err in basing his adverse

6 credibility determination on inconsistencies and omissions

7 “collateral or ancillary” to Zheng’s claims. See Xiu Xia

8 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

9 As the agency found, Zheng’s claim in his asylum

10 application, that ten members of the family planning

11 authority had beaten him, conflicted with his testimony that

12 he was never physically harmed by the Chinese government.

13 Zheng also failed to testify in conformity with his

14 statement in his application that he was threatened with

15 sterilization. Furthermore, although he testified that,

16 while he was at a construction site, family planning

17 officials approached his father at home and threatened to

18 target Zheng for forcible sterilization, Zheng did not

19 mention this incident in his application. To the extent

20 that Zheng argues that these inconsistencies resulted from

21 his poor education and difficulties in translation, a

22 reasonable fact-finder would not be compelled to credit that

23 explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

24 Cir. 2005).

3
 1 As the agency noted, Zheng was also inconsistent in

2 that he failed to testify in conformity with his assertions

3 in his application that he had been fined after his wife was

4 forced to abort her pregnancy and required to attend several

5 gynecological examinations, or that he had been threatened

6 with forcible sterilization while at his local family

7 planning office. Although Zheng’s explanation, that he did

8 not testify about the events surrounding his wife’s forced

9 abortion because they are not directly relevant to his own

10 asylum application, might have raised a valid argument under

11 this Court’s pre-REAL ID Act case law, see Heui Soo Kim v.

12 Gonzales, 458 F.3d 40, 46-49 (2d Cir. 2006), under the REAL

13 ID Act, the agency does not err in considering any

14 inconsistency or omission, see 8 U.S.C.

15 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 167.

16 Moreover, the agency reasonably found that Zheng failed

17 to rehabilitate his testimony, as he did not provide an

18 affidavit from his father corroborating his claim. See Biao

19 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

20 (explaining that an applicant’s failure to corroborate his

21 testimony may bear on credibility because the absence of

22 corroboration undermines the applicant’s ability to

23 rehabilitate testimony that was called into question).

4
 1 Contrary to Zheng’s argument, the IJ was not required first

2 to identify the missing evidence and show that it was

3 reasonably available. See Diallo v. Gonzales, 445 F.3d 624,

4 633-34 (2d Cir. 2006).

5 Based on the inconsistencies and lack of corroboration

6 found by the agency, substantial evidence supports the

7 agency’s adverse credibility determination, 8 U.S.C.

8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167, which

9 provided an adequate basis for denying asylum, withholding

10 of removal, and CAT relief, see Paul v. Gonzales, 444 F.3d

11 148, 155-57 (2d Cir. 2006).

12 For the foregoing reasons, the petition for review is

13 DENIED. As we have completed our review, any stay of

14 removal that the Court previously granted in this petition

15 is VACATED, and any pending motion for a stay of removal in

16 this petition is DISMISSED as moot. Any pending request for

17 oral argument in this petition is DENIED in accordance with

18 Federal Rule of Appellate Procedure 34(a)(2), and Second

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23

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