12-3309

Cui v. Holder

BIA

Cheng, IJ

A087 462 981

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

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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

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ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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 9th day of May, two thousand fourteen.

PRESENT:

ROBERT A. KATZMANN,

Chief Judge,

RALPH K. WINTER,

DEBRA ANN LIVINGSTON,

Circuit Judges.

_____________________________________

ZHENGGEN CUI,

Petitioner, 

 v. 12-3309

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Gregory Marotta, Law Office of

Gregory Marotta, Vernon, New Jersey. 

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

General; Cindy S. Ferrier, Assistant

Director; Surell Brady, 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.

Petitioner Zhenggen Cui, a native and citizen of China,

seeks review of a July 26, 2012, decision of the BIA

affirming a July 7, 2009, decision of Immigration Judge

(“IJ”) Mary Cheng, denying Cui’s application for asylum,

withholding of removal and relief under the Convention

Against Torture (“CAT”). We assume the parties’ familiarity

with the underlying facts and procedural history of this

case.

Under the circumstances of this case, we have reviewed 

both the BIA’s and the IJ’s decisions. See Zaman v.

Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable

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

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

66 (2d Cir. 2008).

For applications like this one, governed by the REAL ID

Act of 2005, the agency may 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

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claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Analyzed under this

standard, the agency’s adverse credibility determination is

supported by substantial evidence.

As an initial matter, Cui has not challenged the

agency’s reliance on the negative demeanor finding, his

inconsistent testimony as to the length of his leave from

work, or the omission of the reason for his first trip to

the United States from the asylum application. These

findings alone provide support for the adverse credibility

determination. See Shunfu Li v. Mukasey, 529 F.3d 141,

146-47 (2d Cir. 2008).

As to the findings Cui has challenged, the agency

reasonably relied on his failure to include his broken rib

and overnight hospital stay in the statement in support of

his asylum application. Although Cui argues that he has

explained these omissions, a reasonable fact-finder would

not be compelled to credit his assertion that he did not

think it was necessary to include these details. See Majidi

v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that

the agency need not credit an applicant’s explanations

unless those explanations would compel a reasonable

fact-finder to do so). We decline to consider Cui’s

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unexhausted contention that he omitted the broken rib from

the asylum statement because there is no medical treatment

for such a fracture. See Lin Zhong v. U.S. Dep’t of

Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007). 

Cui notes that the asylum statement generally asserted

that he had been injured and sought medical treatment. 

However, given that the alleged mistreatment he suffered

during the detention was his sole claim of past persecution,

the agency’s reliance on these omissions was reasonable. 

See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,

295 (2d Cir. 2006). 

The agency also reasonably relied on Cui’s inconsistent

testimony as to when he was fired from his job. The agency

was not compelled to accept his explanation – that he

returned to the workplace after he was fired to finish and

organize some of his work – considering that Cui did not

explain why he needed to finish or organize anything if he

had been terminated the month before. See Majidi, 430 F.3d

at 80-81. Cui has also failed to provide a compelling

explanation for his inconsistent testimony as to whether he

knew who informed authorities about his statements.

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Having found Cui not credible, the agency reasonably

noted that his failure to provide corroboration further

undermined his credibility. See Biao Yang v. Gonzales, 496

F.3d 268, 273 (2d Cir. 2007). The letter from his father

did not provide adequate corroboration because it omitted

both his broken rib and his hospitalization, and Cui could

not explain these omissions. Although Cui emphasizes that

he provided medical documentation that he suffered a broken

rib, the agency found that this evidence did not indicate

how he broke his rib, and the weight afforded to the

applicant’s evidence lies largely within the discretion of

the agency. See Xiao Ji Chen v. U.S. Dep't of Justice, 471

F.3d 315, 342 (2d Cir. 2006)

Accordingly, given the unchallenged findings, the

inconsistencies relating to Cui’s sole allegation of past

harm, and the lack of corroboration, the agency’s adverse

credibility determination is supported by substantial

evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

534 F.3d at 167. 

Having reasonably found that Cui failed to establish

eligibility for asylum on credibility grounds, the agency

did not err in denying withholding of removal and relief

under the CAT, as these claims shared the same factual

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predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

520, 523 (2d Cir. 2005).

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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