13-499

Zheng v. Holder

BIA

Videla, IJ

A087 799 361

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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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 29th day of July, two thousand fourteen.

PRESENT:

ROSEMARY S. POOLER,

GERARD E. LYNCH,

CHRISTOPHER F. DRONEY,

Circuit Judges.

_____________________________________

DECHENG ZHENG,

Petitioner, 

 v. 13-499

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Ai Tong, New York, NY. 

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

General, Blair T. O’Connor,

Assistant Director, Juria L. Jones,

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.

Decheng Zheng, a native and citizen of China, seeks

review of a January 22, 2013, decision of the BIA affirming

a July 7, 2011, decision of an Immigration Judge (“IJ”),

which denied his application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Decheng Zheng, No. A087 799 361 (B.I.A. Jan.

22, 2013), aff’g No. A087 799 361 (Immig. Ct. N.Y. City July

7, 2011). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA. See Xue Hong Yang

v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005);

see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

Cir. 2005). Accordingly, the IJ's finding that Zheng's

asylum application was untimely is not before us. We review

the agency's factual findings, including adverse credibility

findings, under the substantial evidence standard. 8 U.S.C.

§ 1252(b)(4)(B); see also Manzur v. U.S. Dep't of Homeland

Sec., 494 F.3d 281, 289 (2d Cir. 2007). Thus, we “defer

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. . . to an IJ's credibility determination unless, from the

totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse

credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,

167 (2d Cir. 2008).

We conclude that the adverse credibility determination

is supported by substantial evidence. In finding Zheng not

credible, the IJ reasonably relied in part on Zheng’s

demeanor, noting that his testimony was often unresponsive

and that it seemed as though he was testifying from

memorized information. 8 U.S.C. § 1158(b)(1)(B)(iii); Lin

Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116-117 (2d

Cir. 2007) (“When reviewing an IJ’s credibility findings, we

afford particular deference in applying the substantial

evidence standard. This deference is at its highest point

where an IJ’s credibility determinations are based on

observation of the applicant’s demeanor[.]” (internal

quotations and citations omitted)). The IJ reasonably

rejected Zheng’s vague explanation that he was “very

nervous” and that his “heart [was] pounding,” especially in

light of Zheng’s apparent ability to recall other facts and

dates with a high degree of specificity. See Majidi v.

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Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (agency need not

credit explanations unless they would compel reasonable

fact-finder to do so). 

The adverse credibility determination is further

supported by the IJ's identification of inconsistencies in

Zheng's testimony about when he made the decision to leave

China and the status of his passport. In particular, Zheng

gave varying testimony about when he decided to leave China,

despite also testifying that the decision was one of the

most important he made in his life. Zheng also offered

inconsistent testimony about the number of passports he had

possessed. Zheng argues that the IJ and BIA erred in

relying on these inconsistencies because they failed to

consider his explanations for the discrepancies in his

testimony. Zheng's contention is meritless. The IJ gave

Zheng several opportunities to explain his apparently

inconsistent answers during the hearing, considered Zheng's

explanations, and found them unpersuasive. Nothing in the

record would compel a reasonable fact-finder to credit

Zheng’s explanations. See Majidi, 430 F.3d at 80-81. 

Nor did the IJ err in finding some of Zheng’s testimony

implausible. The implausibility finding was tethered to the

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record before the IJ. See Siewe v. Gonzales, 480 F.3d 160,

169 (2d Cir. 2007) (stating that, so long as an inference is

tethered to the record, the Court affords it deference). In

particular, the IJ reasonably relied on the disconnect

between various portions of Zheng’s own testimony and

information found in the State Department’s Country Report

to conclude that Zheng’s account of how the family planning

officials reacted to his wife missing a single IUD check-up

was implausible. See Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 341-42 (2d Cir. 2006) (noting that State

Department reports are usually the best available source of

information about conditions within a country).

Having identified valid grounds for questioning Zheng’s

credibility, the IJ reasonably relied on his failure to

provide adequate evidence to support his application. “An

applicant's failure to corroborate his testimony may bear on

credibility, because the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has

already been called into question.” Biao Yang v. Gonzales,

496 F.3d 268, 273 (2d Cir. 2007). Here, although Zheng

submitted a letter from his wife, the IJ reasonably decided

to afford the letter little weight because Zheng’s wife was

an interested party who was not available for cross5
examination. See Xiao Ji Chen, 471 F.3d at 342 (finding that

the weight afforded to the applicant's evidence lies largely

within the discretion of the agency). Additionally, Zheng

concedes that the IJ identified missing evidence, and does

not argue that the evidence was unavailable. Accordingly,

he has shown no error in the corroboration finding. See

Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009)

(recognizing that IJ may not be able to determine that

corroboration is needed until conclusion of hearing and

applicant has “burden of introducing such evidence without

prompting”). 

Given the inconsistencies, problematic demeanor,

implausible testimony, and lack of corroboration, the

totality of the circumstances supports the agency’s adverse

credibility determination. See 8 U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

at 167. Thus, the agency did not err in denying asylum,

withholding of removal, and CAT relief. See Paul v.

Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006) (recognizing

that withholding of removal and CAT claims necessarily fail

if the applicant is unable to show the objective likelihood

of persecution needed to make out an asylum claim and the

factual predicate for the claims is the same).

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For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, petitioner’s

February 14, 2013 motion for a stay of removal in this

petition is DENIED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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