17-556 Zheng v. Sessions BIA Loprest, IJ A200 241 362

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 30th day of October, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 REENA RAGGI, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 BIN ZHENG, 14 15 Petitioner, 16 17 v. 17-556 18 NAC 19 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Lee Ratner, Law Offices of 27 Michael Brown, PC, New York, NY. 28 1 FOR RESPONDENT: Chad A. Readler, Principal Deputy 2 Assistant Attorney General; Cindy 3 S. Ferrier, Assistant Director; 4 Kimberly A. Burdge, Trial 5 Attorney, Office of Immigration 6 Litigation, United States 7 Department of Justice, 8 Washington, DC. 9 10 UPON DUE CONSIDERATION of this petition for review of a

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

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

13 is DENIED.

14 Petitioner Bin Zheng, a native and citizen of the

15 People’s Republic of China, seeks review of a February 3,

16 2017, decision of the BIA affirming an April 19, 2016,

17 decision of an Immigration Judge (“IJ”) denying Zheng’s

18 application for asylum, withholding of removal, and relief

19 under the Convention Against Torture (“CAT”). In re Bin

20 Zheng, No. A200 241 362 (B.I.A. Feb. 3, 2017), aff’g No. A200

21 241 362 (Immig. Ct. N.Y. City Apr. 19, 2016). We assume the

22 parties’ familiarity with the underlying facts and procedural

23 history in this case.

24 Under the circumstances of this case, we have reviewed

25 the IJ’s decision as supplemented by the BIA. See Yan Chen

26 v. Gonzales,

(2d Cir. 2005). The applicable

27 standards of review are well established. See 8 U.S.C.

2 1 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,

, 165-

2 66 (2d Cir. 2008).

3 The governing REAL ID Act credibility standard provides

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

5 circumstances” and may base a credibility finding on an

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

7 plausibility of his account, and inconsistencies or omissions

8 in his or his witness’s statements, “without regard to

9 whether” they go “to the heart of the applicant’s claim.” 8

(b)(1)(B)(iii); see Xiu Xia Lin,

163-64, 166-67. “A petitioner must do more than offer a

12 plausible explanation for his inconsistent statements to

13 secure relief; he must demonstrate that a reasonable fact-

14 finder would be compelled to credit his testimony.” Majidi

15 v. Gonzales,

(2d Cir. 2005) (internal

16 quotation marks omitted). “We defer . . . to an IJ’s

17 credibility determination unless . . . it is plain that no

18 reasonable fact-finder could make such an adverse credibility

19 ruling.” Xiu Xia Lin,

. For the reasons that

20 follow, we conclude that the agency did not err in finding

21 Zheng not credible.

22

3 1 The agency reasonably relied on the inconsistency between

2 Zheng’s testimony and his church’s letter about when his

3 church learned that he had left China. See

(holding that

4 an “IJ may rely on any inconsistency or omission in making an

5 adverse credibility determination as long as the ‘totality of

6 the circumstances’ establishes that an asylum applicant is

7 not credible” (quoting

(b)(1)(B)(iii))). When

8 asked if his church knew that he left China, Zheng responded

9 that it did because he asked fellow church members to write

10 letters in support of his asylum application in July 2012.

11 However, the church’s letter was dated March 2012, Zheng was

12 unable to proffer any explanation for the date discrepancy at

13 his hearing, and the IJ noted a long pause on the record when

14 Zheng was asked for an explanation. Moreover, the BIA did

15 not err in rejecting Zheng’s explanation that it was unclear

16 if the questions concerned the church’s March 2012 letter or

17 a July 2012 letter from his church friend because Zheng

18 testified that his church knew he left China only because he

19 asked his fellow church members to write letters in July 2012,

20 and he did not identify how his church obtained the

21 information before July 2012. See Majidi,

.

22 The import of this finding is substantial: if the church

4 1 letter predates the point when Zheng claimed his church became

2 aware he had left China, then the letter cannot be genuine.

3 See Siewe v. Gonzales,

(2d Cir. 2007) (“[A]

4 single false document . . . may (if attributable to the

5 petitioner) infect the balance of the alien’s uncorroborated

6 or unauthenticated evidence. An IJ may, either expressly or

7 impliedly, rely on falsus in uno to discredit evidence that

8 does not benefit from corroboration or authentication

9 independent of the petitioner’s own credibility.”).

10 The adverse credibility determination is bolstered by

11 the IJ’s observations of Zheng’s demeanor. See 8 U.S.C.

12 § 1158(b)(1)(B)(iii). “[D]emeanor is paradigmatically the

13 sort of evidence that a fact-finder is best positioned to

14 evaluate,” Li Zu Guan v. INS,

(2d Cir.

15 2006), and we give particular deference to the agency’s

16 assessment, especially where, as here, the demeanor finding

17 is linked to inconsistencies, Li Hua Lin v. U.S. Dep’t of

18 Justice,

(2d Cir. 2006). The IJ’s

19 observation that Zheng’s testimony on cross examination was

20 nonresponsive is supported by the evidence of Zheng’s long

21 pause when he was asked about the church’s letter, along with

22 his nonresponsive answers when asked if he attended a

5 1 government-sanctioned church and why he continued attending

2 his church in China while under surveillance. See id.; see

3 also Siewe,

(“[S]peculation that inheres

4 in inference is not ‘bald’ if the inference is made available

5 to the factfinder by record facts, or even a single fact,

6 viewed in the light of common sense and ordinary experience.

7 So long as an inferential leap is tethered to the evidentiary

8 record, we will accord deference to the finding.”).

9 Zheng does not challenge the agency’s findings that his

10 testimony was vague concerning the first police visit to his

11 home and the basis for his claim that he was under

12 surveillance. Nor does he challenge that his documentary

13 evidence was insufficient to rehabilitate his credibility.

14 He has therefore waived review of these findings, which stand

15 as appropriate bases for the agency’s adverse credibility

16 determination. See Norton v. Sam’s Club,

, 117

17 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs

18 are considered waived and normally will not be addressed on

19 appeal.”); Shunfu Li v. Mukasey,

(2d

20 Cir. 2008).

21 We do recognize, however, an error in the IJ’s conclusion

22 that Zheng gave differing descriptions of his arrest and

6 1 detention in China. Zheng’s application reported that he was

2 arrested in China and held in a cell with only a table, a

3 chair, and a lamp for a total of 48 hours. Zheng testified

4 on cross examination that he was locked in an interrogation

5 room but was not “imprisoned.” Although when subsequently

6 asked how long he was in prison, Zheng responded 48 hours,

7 the IJ’s reliance on this assertion as an inconsistency is

8 misplaced because the underlying descriptions of where and

9 how long he was held were consistent.

10 Even with this error, and even crediting Zheng’s

11 challenge to the agency’s finding that his testimony was vague

12 concerning his imputed political opinion and his father’s

13 whistleblowing activities and death, remand would be futile

14 given the support for the agency’s credibility determination

15 set forth above. Li Hua Lin,

(observing

16 that remand is futile if the agency’s “errors are relatively

17 minor in light of the record as a whole”; for example, “where

18 the IJ or BIA’s reliance on an erroneous aspect of its

19 reasoning is so tangential that there is no realistic

20 possibility that the outcome would be different on remand.”

21 (internal quotation marks omitted)). Both the IJ and BIA

22 found that the discrepancy concerning Zheng’s church letter

7 1 could not be reconciled, and the IJ’s demeanor finding is

2 well supported by the record. We therefore conclude that the

3 adverse credibility determination is supported by the

4 “totality of the circumstances.” See Xiu Xia Lin,

at 167. The credibility determination is dispositive of

6 asylum, withholding of removal, and CAT relief because all

7 three claims are based on the same factual predicate. See

8 Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

9 For the foregoing reasons, the petition for review is

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

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

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

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

14 in this petition is DENIED in accordance with Federal Rule of

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

16 34.1(b).

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court

8