10-5157-ag Zheng v. Holder BIA Mulligan, IJ A089 252 073/074 

### 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 A SUMMARY**  **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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 5 th** **day of March, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **DEBRA ANN LIVINGSTON,** 9 **DENNY CHIN,** 10 Circuit Judges**.** 11

**_______________________________________** 12 13 **DAN CHEN ZHENG, CHAO JIN TANG,** 14 Petitioners**,** 15 16 **v. 10-5157-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**______________________________________** 22 23 **FOR PETITIONERS: Feng Li, Moslemi and Associates,** 24 **Inc., New York, New York.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Cindy S. Ferrier, Senior** 28 **Litigation Counsel; Nairi S.** 29**Gruzenski, Trial Attorney, Office of** 1 **Immigration Litigation, U.S.** 2 **Department of Justice, Washington** 3 **D.C.** 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioners Dan Chen Zheng and Chao Jin Tang, natives 10 and citizens of China, seek review of the December 6, 2010, 11 decision of the BIA affirming the May 5, 2009, decision of 12 Immigration Judge (“IJ”) Thomas J. Mulligan, denying the 13 petitioners’ applications for asylum, withholding of 14 removal, and relief under the Convention Against Torture 15 (“CAT”). In re Dan Chen Zheng, Chao Jin Tang, Nos. A089 252 16 073/074 (B.I.A. Dec. 6, 2010), aff’gNos. A089 252 073/074 17 (Immig. Ct. N.Y. City May 5, 2009). We assume the parties’ 18 familiarity with the underlying facts and procedural history 19 in this case. 20 Under the circumstances of this case, we have reviewed 21 the IJ’s decision as modified by the BIA, i.e., minus the 22 arguments for denying relief that the BIA declined to 23 consider. See Xue Hong Yang v. U.S. Dep’t of Justice , 426 24 F.3d 520, 522 (2d Cir. 2005). The applicable standards of 25

2review are well-established. See 8 U.S.C. § 1252(b)(4)(B); 1 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d 2 Cir. 2008). For asylum applications governed by the REAL ID 3 Act, such as the application in this case, the agency may, 4 considering the totality of the circumstances, base a 5 credibility finding on an asylum applicant’s demeanor, the 6 plausibility of his account, and inconsistencies in his 7 statements, without regard to whether they go “to the heart 8 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); 9 Xiu Xia Lin, 534 F.3d at 163-64. 10 Substantial evidence supports the agency’s adverse 11 credibility determination. In finding petitioners not 12 credible, the agency reasonably relied in part on their 13 anxious and evasive demeanor while testifying about certain 14 aspects of their claim. See8 U.S.C. § 1158(b)(1)(B)(iii); 15 see also Majidi v. Gonzales , 430 F.3d 77, 81 n.1 (2d Cir. 16 2005). Moreover, “[w]e can be still more confident in our 17 review of observations about an applicant’s demeanor where, 18 as here, they are supported by specific examples of 19 inconsistent testimony.” Li Hua Lin v. U.S. Dep’t of 20 Justice , 453 F.3d 99, 109 (2d Cir. 2006). Indeed, the 21 record supports the IJ’s determination that Tang’s demeanor 22

3became evasive when he was questioned regarding the details 1 of Zheng’s hospital room, and during that testimony he 2 provided details that were inconsistent with Zheng’s 3 testimony. See id. Furthermore, although petitioners argue 4 that they should have been provided an opportunity to 5 explain an inconsistency in their testimony regarding 6 whether Tang ever returned to work following Zheng’s 7 abortion, the agency is not required to solicit explanations 8 for self-evident inconsistencies and petitioners fail to 9 suggest what explanation they would have proffered had they 10 been so questioned. See Ming Shi Xue v. BIA, 439 F.3d 111, 11 125 (2d Cir. 2006). 12 In addition, the agency reasonably questioned the 13 plausibility of certain aspects of petitioners’ testimony, 14

see 8 U.S.C. § 1158(b)(1)(B)(iii); see also Siewe v. 15 Gonzales , 480 F.3d 160, 168-69 (2d Cir. 2007) (holding that 16 an implausibility finding that is based on “speculation that 17 inheres in inference is not ‘bald’ if the inference is made 18 available to the factfinder by record facts, or even a 19 single fact, viewed in the light of common sense and 20 ordinary experience”), and noted the absence of letters or 21 testimony from Zheng’s relatives in the United States, see 22 Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007)

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4Thus, we find that the agency’s adverse credibility 1 determination provided an adequate basis for denying asylum, 2 withholding of removal, and CAT relief insofar as those 3 claims were based on the same factual predicate. See Paul 4 v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is VACATED, and any pending motion for a stay of removal in 9 this petition is DISMISSED as moot. Any pending request for 10 oral argument in this petition is DENIED in accordance with 11 Federal Rule of Appellate Procedure 34(a)(2), and Second 12 Circuit Local Rule 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17

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