2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

2-28-2011 

# Li a n g Z he n g v

. Att y Ge n U S A

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 09-3978

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IMG
- 050 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 0 9

- 3978

___________ LIANG ZHENG ,

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

___________________________________ _ On Petition for Review of an Order of the Board of Immigration Appeals ( A098

- 986

- 482 ) Immigration Judge: Honorable M iriam K. Mills

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

February 23, 2011 Before: M CKEE, Chief Judge , SMITH AND GARTH , Circuit Judges

(Opinion filed : February 28, 2011 )

___________ OPINION

___________ PER CURIAM

. Liang Zheng, a native and citizen of China, pe titions for review of a final order of removal. We will deny the petition for review.2

Zheng entered the United States in 2005 by surreptitiously crossing the Mexican
border but was promptly apprehended and served with a Notice to Appear

. Zheng
conceded removability as an alien present without being admitted or paroled

. In 2005, he applied for asylum, withholding of removal, and Convention Against Torture (“CAT”)
relief . Zheng c ontends that he was persecuted in China , and fears future persecution, as a practitioner of Falun Gong , which he began in 2001 as a means to cur e various stomach
ailments . Zheng supplemented the written application in 2007 and submitted supporting documents, including medical re cords from China and an affidavit from his mother

. After an evidentiary hearing, a n I mmigration Judge (“I J ”) determined that Zheng
lack ed credibility and denied relief. A mong other things, the IJ observed that Zheng
failed adequately to explain the omission from his written application of i n formation

rega rding his detention by the police

. While Zheng testified t hat t he police detained him
for two days in a basement for having practiced Falun Gong, and allegedly beat him with
an electric baton , Zheng failed to mention these events in his written applicatio n. Zheng appealed and challeng e d the adverse credibility determination. The BIA dismissed the appeal. Applying the REAL ID Act, the BIA found that the IJ properly
based the credibility finding on omissions and inconsistencies between Zheng’ s testimony, his written application s , and the evidence of record . In particular, the BIA noted Zheng’s failure to disclose i n his application s the a lleged two

- day detention , and it
noted that the letter from Zheng’s mother also contain ed no information detailing th e3

detention

. Additionally , Zheng’s medical report s contradicted his testimony by revealing that Zheng began to receive treatment for his stomach ailments in 2002 , whereas Zheng
testified that the ailments had ceased in 2001 after he began practic ing Fal u n G ong. The
BIA found no persuasive explanation for the omissions and inconsistencies . Given the
adverse credibility determination, the BIA held that Zheng failed to carry his burden of proof for as ylum and withholding of removal, and it denied CAT relief b ecause Zheng
failed to show that it is more likely than not that he w ould be torture d in China. Zheng timely filed a petition for review in this Court. We have jurisdi c tion under 8 U.S.C. § 1252(a) (1)

. 1 “ In cases where the BIA has
based its decision on the IJ’ s adverse credibility analy sis, we may review both the BIA’s opinion and the IJ’ s opinion. ” Thu v. Att’y Gen. , 510 F.3d 405, 412 (3d Cir. 2007)

.

“ Adverse credibility determinations must be upheld if supported by substantial evidence, and can only be reversed if the evidence is such that a reasonable factfinder would be compelled to conclude otherwise. ” Id. (citation and quotation marks omitted). Because Zheng filed for asylum after May 11, 2005, the REAL ID Act applies, s ee Chukwu v.
Att’ y Ge n
. , 484 F.3d 185, 189 (3d Cir. 2007) , and it allows a tri er of fact to base a credibility determination on inconsistencies, inherent implausibilities, inaccuracies, and other factors, without regard to whether they rela te to the heart of the applicant’ s claim.
See INA § 208(b)(1)(B)(iii).

1 Because Zheng does not argue the CAT claim in h is brief to this Court, we deem that issue waived and do not address it.4

We find s ubstantial evidence to support the decision to reject Zheng’s credibility

. In his updated I

- 589 application submitted in 2007, Zheng stated that, “[i]n February 2005, the police searched my home and forced me to si gn [] a guarantee and promise that
I would never practice Falun Gong. ” A.R. at 177. In contrast, Zheng stated in his oral testimony before the IJ that, in 2001 , the police arrested him at home for practicing Falun Gong; they took him into custody for two days, where he was locked in a basement; the police hit him; they “ used their electric baton ... [to] strike my body ,” leaving scars; and they released Zheng after he signed a promise to discontinue Falun Gong. A.R. at 86

- 87

. In addition to the discrepancy as to the year in which the arrest took place, the written asylum application omitted any detail regarding th is incident

. Indeed , Zheng made no reference at all pr ior to the merits hearing of having been locked in a basement for two days and assault ed wi th an electric baton. These alleged facts are central to Zheng’s claim that he was persecut ed in China , and their omission support s the adverse credibility determination

. See Xie v. Ashcroft , 359 F.3d 239, 243 (3d Cir. 2004). T he record also support s t he IJ’s additional findings regarding the inconsistency between Zheng’s medical records and his claims about when he suffered from his stomach ailments, and the inconsistency regarding the symptoms that Zheng suffered

. As the BIA observed, Zheng offered n o adequate expla n ation for
the se significant problems with his evidence

. We have fully considered Zheng’s arguments on appeal, but he has not shown that5

the record compels a contrary finding regarding his credibility. For the foregoing reasons, we will d eny the petition for review.