11-5313
Zheng v. Holder
BIA
Van Wyke, IJ
A097 852 070
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 1st day of May, two thousand thirteen.
PRESENT:
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
FENG ZHENG,
Petitioner,
v. 11-5313
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Evan Goldberg, New York, N.Y.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Jennifer P.
Levings, Senior Litigation Counsel,
Tim Ramnitz, 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.
Feng Zheng, a native and citizen of the People’s
Republic of China, seeks review of a November 28, 2011,
order of the BIA, affirming the January 27, 2010 and
November 2, 2006, decisions of Immigration Judge (“IJ”)
William Van Wyke, which denied his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). See In re Feng Zheng, No. A097 852
070 (B.I.A. Nov. 28, 2011), aff’g No. A097 852 070 (Immig.
Ct. N.Y. City Jan. 27, 2010 & Nov. 2, 2006). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
As a preliminary matter, because Zheng does not
challenge the agency’s pretermission of his asylum
application as untimely or its denial of CAT relief, we
address only the agency’s denial of withholding of removal.
Contrary to the government’s argument, because the BIA
referenced specific credibility findings in its decision, we
deem Zheng’s challenge to that determination exhausted.
See Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1994)
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(finding that if the BIA addresses issues not raised by a
petitioner, those issues may be considered exhausted).
Because “the BIA agree[d] with the IJ’s conclusion that
[the] petitioner [was] not credible and, without rejecting
any of the IJ’s grounds for decision, emphasize[d]
particular aspects of that decision,” we have reviewed both
the IJ’s and the BIA’s decisions. Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009). In pre-REAL ID Act cases, such as this one,
inconsistencies that form the basis of an adverse
credibility determination must “bear a legitimate nexus” to
the applicant’s claim of persecution and be “substantial”
when measured against the record as a whole.
Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003);
see also Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006).
The agency, however, may rely on the cumulative effect of
even minor inconsistencies. See Tu Lin v. Gonzales, 446
F.3d 395, 402 (2d Cir. 2006); Liang Chen v. U.S. Attorney
Gen., 454 F.3d 103, 106-107 (2d Cir. 2006) (per curiam).
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We conclude that substantial evidence supports the
agency’s conclusion that Zheng did not testify credibly that
he suffered past harm and feared future harm on account of
his Christian religion. In finding Zheng not credible, the
IJ reasonably relied on Zheng’s failure to indicate in his
asylum application that he had been arrested for having
participated in unsanctioned church activities on two
occasions prior to his May 1998 arrest. See Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 166 n.3 (2d Cir. 2008) (holding that
for purposes of analyzing a credibility determination, “[a]n
inconsistency and an omission are . . . functionally
equivalent”); see also Secaida-Rosales, 331 F.3d at 308.
Contrary to Zheng’s argument, details regarding his two pre-
1998 arrests for attending unsanctioned churches were
material, and bore a “legitimate nexus,” to his claim that
he had suffered past persecution on account of his Christian
religion, and, therefore, the omission of such details from
his asylum application formed a legitimate basis for the
IJ’s adverse credibility determination. See Secaida-
Rosales, 331 F.3d at 307-08; see also Xiu Xia Lin, 534 F.3d
at 166 n.3.
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The IJ also reasonably relied on Zheng’s failure to
testify consistently regarding whether he had been
continuously in hiding at his home from the time he was
released from detention following his May 1998 arrest until
his departure from China in October 2001, as well as his
inability to confidently recall the number of people that
were arrested during the May 1998 police raid on the worship
services he had been attending or to describe in detail the
circumstances surrounding his second arrest. This
information related to the heart of Zheng’s claim that he
had been arrested and forced into hiding because of his
practice of Christianity. See Secaida-Rosales, 331 F.3d at
307-08.
Furthermore, the IJ reasonably found implausible
Zheng’s assertion that he had called his fellow church
members shortly before his departure from China to tell them
that he was leaving the country given that he had not
maintained any contact with the church members during the
previous three years. See Wensheng Yan v. Mukasey, 509 F.3d
63, 67 (2d Cir. 2009) (holding that where the IJ’s findings
are “tethered to record evidence, and there is nothing else
in the record from which a firm conviction of error could
properly be derived,” we will not disturb the inherent
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implausibility finding). Contrary to Zheng’s argument, his
failure to maintain contact with fellow church members was
not immaterial because, as the IJ noted, Zheng’s actions
called into question whether he in fact had been a member of
an unsanctioned church in China.
Having called Zheng’s testimony into question, the IJ
did not err in finding that Zheng failed to corroborate his
claim that he had attended an unsanctioned church in China.
See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
(“[T]he absence of corroboration in general makes an
applicant unable to rehabilitate testimony that has already
been called into question.”). Specifically, as the IJ
observed, while Zheng testified that he had regularly
attended unsanctioned church gatherings and assisted his ex-
girlfriend with organizing worship services in private
homes, he failed to present any letters from church members
confirming his membership in, or attendance at, any
unsanctioned church. Although Zheng explained that his
fellow church members were afraid that Chinese authorities
would discover their activities and did not have official
documentation, the IJ was not required to accept these
explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005) (holding that an agency need not credit an
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applicant’s explanations for inconsistent testimony unless
those explanations would compel a reasonable fact-finder to
do so). Finally, the agency reasonably declined to accord
any probative weight to a letter from a government-
sanctioned church, which indicated that Zheng had attended
the church since 1998, as the letter did not corroborate
Zheng’s claim that he had attended an unsanctioned church in
China. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 342 (2d Cir. 2006) (finding that the weight afforded to
the evidence in immigration proceedings “lies largely within
the discretion of the agency.” (brackets omitted)).
Because the adverse credibility determination is
supported by the record, the agency did not err in denying
withholding of removal. See Secaida-Rosales, 331 F.3d at
307-08.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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