16-3083 Zheng v. Sessions BIA Loprest, IJ A200 933 686

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 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 1st day of June, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 GUIDO CALABRESI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 BIN QING ZHENG, 14 Petitioner, 15 16 v. 16-3083 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jan Potemkin, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting 26 Assistant Attorney General; 27 Holly M. Smith, Senior 28 Litigation Counsel; David Kim, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 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 Bin Qing Zheng, a native and citizen of the

6 People’s Republic of China, seeks review of an August 10,

7 2016, decision of the BIA affirming a June 19, 2015, decision

8 of an Immigration Judge (“IJ”) denying Zheng’s application

9 for asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Bin Qing Zheng,

11 No. A200 933 686 (B.I.A. Aug. 10, 2016), aff’g No. A200 933

12 686 (Immig. Ct. N.Y. City June 19, 2015). We assume the

13 parties’ familiarity with the underlying facts and procedural

14 history in this case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as modified by the BIA, i.e., excluding

17 the pretermission of the asylum application on timeliness

18 grounds, which the BIA did not reach. See Xue Hong Yang v.

19 U.S. Dep’t of Justice,

(2d Cir. 2005).

20 The applicable standards of review are well established.

21 See

(b)(4)(B); Xiu Xia Lin v. Mukasey, 534

(2d Cir. 2008). For the reasons that

2 1 follow, we conclude that the agency did not err in

2 determining that Zheng failed to credibly establish past

3 persecution or to independently establish a well-founded

4 fear of future persecution.

5 I. Past Persecution

6 The governing REAL ID Act credibility standard provides

7 that the agency must “[c]onsider[] the totality of the

8 circumstances,” and may base a credibility finding on an

9 applicant’s “demeanor, candor, or responsiveness,” the

10 plausibility of her account, and inconsistencies in her or

11 her witness’s statements, “without regard to whether” they

12 go “to the heart of the applicant’s claim.” 8 U.S.C.

13 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We

14 defer . . . to an IJ’s credibility determination

15 unless . . . it is plain that no reasonable fact-finder

16 could make such an adverse credibility ruling.” Xiu Xia

17 Lin, 534 F.3d at 167.

18 As an initial matter, the Government is correct that

19 Zheng has waived review of some bases for the agency’s

20 credibility determination by failing to challenge them in her

21 brief. Norton v. Sam’s Club,

(2d Cir. 1998)

22 (“Issues not sufficiently argued in the briefs are considered

3 1 waived and normally will not be addressed on appeal.”). The

2 following findings therefore stand as appropriate bases for

3 the credibility determination: Zheng was not forthcoming

4 about two attempts to obtain a U.S. visa prior to her alleged

5 persecution; Zheng’s testimony that she fled China in

6 December 2009 was inconsistent with a government record that

7 her passport was used in Mexico in October 2009; and the

8 change in Zheng’s demeanor during cross-examination suggested

9 that she had potentially memorized the questions put to her

10 on direct examination. Id.; Shunfu Li v. Mukasey,

(2d Cir. 2008). Moreover, the IJ’s observations

12 of Zheng’s demeanor are supported by the record: Zheng’s

13 demeanor changed markedly, and she was nonresponsive when

14 questioned about her undisclosed attempts to gain admission

15 to the United States before her alleged persecution. Jin

16 Chen v. U.S. Dep’t of Justice,

(2d Cir.

17 2005) (“We give particular deference to credibility

18 determinations that are based on the adjudicator’s

19 observation of the applicant’s demeanor . . . .”). Further,

20 given Zheng’s false testimony about her prior attempts to

21 gain admission to the United States, the agency was free to

22 disregard the remainder of her uncorroborated testimony and

4 1 her unauthenticated evidence. Siewe v. Gonzales,

(2d Cir. 2007) (“[A] single false document or a

3 single instance of false testimony may (if attributable to

4 the petitioner) infect the balance of the alien’s

5 uncorroborated or unauthenticated evidence.”).

6 Zheng submitted a letter from her mother in China to

7 confirm her arrest, detention, beating, and the date of her

8 departure from China. We reject Zheng’s argument that the

9 IJ failed to consider the letter. The IJ explicitly

10 acknowledged the letter in his decision, and “we presume

11 that the IJ has taken into account all the evidence before

12 him, unless the record compellingly suggests otherwise.”

13 Xiao Ji Chen v. U.S. Dep’t of Justice,

, 336

14 n.17 (2d Cir. 2006); see also Jian Hui Shao v. Mukasey, 546

(2d Cir. 2008) (agency is not required to

16 “expressly parse or refute on the record each individual

17 argument or piece of evidence offered by the petitioner”

18 (quoting Zhi Yun Gao v. Mukasey,

(2d Cir.

19 2007)). Although Zheng is correct that the IJ discounted

20 the letter from her brother as based on second-hand

21 information from her mother, the IJ’s failure to provide

22 similar individualized analysis of Zheng’s mother’s letter

5 1 does not compellingly suggest that it was ignored. Xiao Ji

2 Chen,

n.17. As the BIA correctly observed,

3 Zheng’s mother’s letter did not explain Zheng’s false

4 testimony about her prior attempts to gain admission to the

5 United States, or her corresponding demeanor issues, and

6 was therefore insufficient to rehabilitate her credibility.

7 See

(holding that the weight accorded to an

8 applicant’s evidence “lie[s] largely within the discretion

9 of the IJ” (internal quotation marks omitted)); Biao Yang

10 v. Gonzales,

(2d Cir. 2007) (“An

11 applicant’s failure to corroborate his or her testimony may

12 bear on credibility, because the absence of corroboration

13 in general makes an applicant unable to rehabilitate

14 testimony that has already been called into question.”).

15 Given the foregoing inconsistency and demeanor

16 findings, as well as Zheng’s false testimony about her

17 attempts to gain admission to the United States before the

18 alleged persecution, the “totality of the circumstances”

19 support the agency’s adverse credibility determination. Xiu

20 Xia Lin, 534 F.3d at 167. While Zheng contends that the

21 bases for the credibility determination relate only to her

22 travel to the United States, her concealment of prior

6 1 attempts to gain admission to the United States calls into

2 question whether she fled China to escape persecution.

3 Regardless, because Zheng does not dispute that she

4 provided false testimony on this issue, the agency was free

5 to discredit the remainder of her uncorroborated testimony.

6 Siewe,

. The agency therefore did not err in

7 concluding that Zheng failed to establish a credible claim

8 of past persecution. Id.; Xiu Xia Lin, 534 F.3d at 167.

9 II. Future Persecution

10 Absent past persecution, an applicant may still

11 establish eligibility for asylum by demonstrating an

12 independent well-founded fear of future persecution, which

13 is a “subjective fear that is objectively reasonable.” Dong

14 Zhong Zheng v. Mukasey,

(2d Cir. 2009)

15 (internal quotation marks omitted); see also Y.C. v.

16 Holder,

(2d Cir. 2013) (“For an asylum

17 claim, the applicant must show a reasonable possibility of

18 future persecution.” (internal quotation marks omitted));

19 Jian Xing Huang v. U.S. INS,

(2d Cir.

20 2005) (“In the absence of solid support in the record,” a

21 fear of persecution is not well founded and “is speculative

22 at best.”). “An asylum applicant can show a well-founded

7 1 fear of future persecution in two ways: (1) by

2 demonstrating that he or she ‘would be singled out

3 individually for persecution’ if returned, or (2) by

4 proving the existence of a ‘pattern or practice in

5 [the] . . . country of nationality . . . of persecution of

6 a group of persons similarly situated to the applicant’ and

7 establishing his or her ‘own inclusion in, and

8 identification with, such group.’” Y.C.,

9 (quoting

(b)(2)(iii)). Zheng does not

10 meaningfully contest the agency’s well-founded fear

11 finding, only generally asserting that she established a

12 reasonable possibility that she would be singled out for

13 persecution because she would continue to practice

14 Catholicism and that there is a pattern or practice of

15 persecution of similarly situated individuals in China.

16 Regardless, as discussed below, the agency reasonably

17 concluded that Zheng failed to meet her burden of proof.

18 The agency correctly observed that reports from the

19 U.S. Department of State reflect regional variation in

20 China’s treatment of underground church members and do not

21 document a single incident of persecution of church members

22 in Zheng’s home region. Given this regional variation, it

8 1 was Zheng’s burden to show that underground church

2 practitioners were being targeted in her home region. See

3 Jian Hui Shao, 546 F.3d at 149-50. Moreover, in light of

4 this regional variation, the agency did not err in

5 concluding that Zheng failed to establish a pattern or

6 practice of persecution of Catholics in China. In re A-M-,

7

(B.I.A. 2005) (defining pattern or

8 practice as harm that is “systemic or pervasive”); Mufied

9 v. Mukasey,

(2d Cir. 2007). Zheng does

10 not challenge the agency’s reading of the country

11 conditions evidence.

12 Accordingly, because the agency reasonably found that

13 Zheng failed to demonstrate an objective basis for her fear

14 of future persecution, Jian Xing Huang,

, it

15 did not err in denying asylum or in concluding that she

16 necessarily failed to meet the higher burdens for withholding

17 of removal and CAT relief, Y.C.,

.

18 For the foregoing reasons, the petition for review is

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

20 that the Court previously granted in this petition is VACATED,

21 and any pending motion for a stay of removal in this petition

22 is DISMISSED as moot. Any pending request for oral argument

9 1 in this petition is DENIED in accordance with Federal Rule of

2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

3 34.1(b).

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe 6 Clerk of Court

10