Jian Can Zheng v. Holder

U.S. Court of Appeals for the Second Circuit
Jian Can Zheng v. Holder, 458 F. App'x 77 (2d Cir. 2012)

Jian Can Zheng v. Holder

Opinion

SUMMARY ORDER

Petitioner Jian Can Zheng, a native and citizen of China, seeks review of a April 27, 2011, order of the BIA affirming the July 1, 2009, decision of Immigration Judge (“U”) quemas J. Mulligan denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jian Can Zheng, No. A089 198 271 (B.I.A. Apr. 27, 2011), ajfg No. A089 198 271 (Immigr. Ct. N.Y. City July 1, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

Under the circumstances of this case, we review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B) (2006); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

Zheng challenges both the agency’s adverse credibility determination and its alternative finding that the harm he suffered did not rise to the level of persecution. Substantial evidence supports the agency’s adverse credibility determination. See Yanqin Weng, 562 F.3d at 513. For applications, such as this one, governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his account, and inconsistencies in his statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) (2006); see also Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).

Here, the IJ relied on Zheng’s demeanor to find him not credible, noting that he failed to answer “simple and basic questions,” was “incredibly nervous,” paused for long periods at several points in *79 his testimony, and, overall, gave “an extremely poor impression that he had memorized a script.” Additionally, the IJ found that Zheng could not provide basic details regarding the event that led to his altercation with Chinese officials and his wife’s alleged forced abortion. Because the IJ was in the best position to observe Zheng’s manner while testifying, and identified specific examples of problematic testimony, we accord his demeanor finding particular deference. See Shu Wen Sun v. BIA, 510 F.3d 377, 380-81 (2d Cir. 2007) (per curiam); Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

Moreover, as the BIA found, even if credible, Zheng did not demonstrate harm rising to the level of persecution because he was not eligible for relief based on the harm suffered by his wife, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309 (2d Cir. 2007) (en banc), and the single incident with family planning officials in which he was punched several times in the chest did not rise to the level of persecution, see Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011) (per cu-riam) (holding that a minor beating by family planning officials who did not have “any intention of arresting or detaining” petitioner did not constitute persecution where no lasting physical injury resulted). Contrary to Zheng’s assertion, because his past harm did not rise to the level of persecution, he is not entitled to a presumption of a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1) (2001). Furthermore, because Zheng was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). We do not reach Zheng’s claim for CAT relief as he did not exhaust it before the BIA. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).

Reference

Full Case Name
JIAN CAN ZHENG, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
Status
Unpublished