18-2429 Zheng v. Barr BIA Thompson, IJ A206 560 263

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 3rd day of September, two thousand twenty. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 XINGCHI ZHENG, 14 Petitioner, 15 16 v. 18-2429 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Zhen Liang Li, New York, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant 26 Attorney General; Anthony P. 27 Nicastro, Assistant Director; 28 Tracey N. McDonald, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 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 Xingchi Zheng, a native and citizen of the

6 People’s Republic of China, seeks review of a July 25, 2018

7 decision of the BIA affirming a September 7, 2017 decision of

8 an Immigration Judge (“IJ”) denying his application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Xingchi Zheng, No.

11 A206 560 263 (B.I.A. July 25, 2018), aff’g No. A206 560 263

12 (Immig. Ct. N.Y. City Sept. 7, 2017). We assume the parties’

13 familiarity with the underlying facts and procedural history.

14 Under the circumstances, we have considered both the IJ’s

15 and the BIA’s opinions “for the sake of completeness.”

16 Wangchuck v. Dep’t of Homeland Sec.,

(2d

17 Cir. 2006). The applicable standards of review are well

18 established. See

(b)(4)(B); Hong Fei Gao v.

19 Sessions,

(2d Cir. 2018).

20 “Considering the totality of the circumstances, and all

21 relevant factors, a trier of fact may base a credibility

2 1 determination on the demeanor, candor, or responsiveness of

2 the applicant or witness, . . . the consistency between the

3 applicant’s or witness’s written and oral statements . . . ,

4 [and] the internal consistency of each such statement . . .

5 without regard to whether an inconsistency, inaccuracy, or

6 falsehood goes to the heart of the applicant’s claim . . .”

7

(b)(1)(B)(iii); see also Xiu Xia Lin v.

8 Mukasey,

, 163–64 (2d Cir. 2008). Substantial

9 evidence supports the agency’s determination that Zheng was

10 not credible as to his claim that he suffered a head injury

11 in a scuffle with a family planning official and was detained

12 and beaten by police for attempting to stop officials from

13 taking his wife to have an abortion.

14 The agency reasonably relied in part on Zheng’s

15 demeanor, noting that he was vague and unresponsive when

16 confronted with certain inconsistencies in his evidence.

17 See

(b)(1)(B)(iii); see also Li Hua Lin v.

18 U.S. Dep’t of Justice,

(2d Cir. 2006) (“We

19 can be still more confident in our review of observations

20 about an applicant’s demeanor where . . . they are

21 supported by specific examples of inconsistent

3 1 testimony.”). The agency also reasonably relied on Zheng’s

2 inconsistent evidence regarding when his wife’s abortion

3 certificate was issued in relation to his detention and

4 payment of a family planning fine and regarding when he saw

5 his brother after arriving in the United States. Nor did

6 the agency err in relying on the omission of Zheng’s head

7 injury from his family’s corroborating letters. See

8

(b)(1)(B)(iii); see also Xiu Xia Lin, 534

9 F.3d at 167 (upholding adverse credibility determination

10 where IJ relied on omissions by third parties). Zheng did

11 not compellingly explain these record inconsistencies. See

12 Majidi v. Gonzales,

(2d Cir. 2005).

13 Having questioned Zheng’s credibility, the agency

14 reasonably relied further on his failure to rehabilitate his

15 testimony with reliable corroborating evidence. “An

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

17 bear on credibility, because the absence of corroboration in

18 general makes an applicant unable to rehabilitate testimony

19 that has already been called into question.” Biao Yang v.

20 Gonzales,

(2d Cir. 2007). The agency

21 reasonably declined to credit the letters from Zheng’s family

4 1 members because, as discussed above, they failed to mention

2 Zheng’s head injury, and further, the authors were interested

3 witnesses who were not available for cross-examination. See

4 Y.C. v. Holder,

(2d Cir. 2013) (“We

5 generally defer to the agency’s evaluation of the weight to

6 be afforded an applicant’s documentary evidence.”); see also

7 In re H-L-H- & Z-Y-Z-,

(B.I.A. 2010)

8 (finding that letters from alien’s friends and family were

9 insufficient to provide substantial support for alien’s

10 claims because they were from interested witnesses not

11 subject to cross-examination), overruled on other grounds by

12 Hui Lin Huang v. Holder,

, 133–38 (2d Cir. 2012).

13 Given the demeanor, inconsistency, and corroboration

14 findings, the agency’s adverse credibility determination is

15 supported by substantial evidence. See 8 U.S.C.

16 § 1158(b)(1)(B)(iii). That determination was dispositive of

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

18 three forms of relief were based on the same factual

19 predicate. See Paul v. Gonzales,

, 156–57 (2d

20 Cir. 2006).

21

5 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

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

6