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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 5th 4 day of March, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 DEBRA ANN LIVINGSTON,

10 DENNY CHIN,

11 Circuit Judges.

12 _______________________________________

13

14 DAN CHEN ZHENG, CHAO JIN TANG,

15 Petitioners, 

16

17 v. 10-5157-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________ 23

24 FOR PETITIONERS: Feng Li, Moslemi and Associates,

25 Inc., New York, New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Cindy S. Ferrier, Senior

29 Litigation Counsel; Nairi S.
1 Gruzenski, Trial Attorney, Office of

2 Immigration Litigation, U.S.

3 Department of Justice, Washington

4 D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioners Dan Chen Zheng and Chao Jin Tang, natives

11 and citizens of China, seek review of the December 6, 2010,

12 decision of the BIA affirming the May 5, 2009, decision of

13 Immigration Judge (“IJ”) Thomas J. Mulligan, denying the

14 petitioners’ applications for asylum, withholding of

15 removal, and relief under the Convention Against Torture

16 (“CAT”). In re Dan Chen Zheng, Chao Jin Tang, Nos. A089 252

17 073/074 (B.I.A. Dec. 6, 2010), aff’g Nos. A089 252 073/074

18 (Immig. Ct. N.Y. City May 5, 2009). We assume the parties’

19 familiarity with the underlying facts and procedural history

20 in this case.

21 Under the circumstances of this case, we have reviewed

22 the IJ’s decision as modified by the BIA, i.e., minus the

23 arguments for denying relief that the BIA declined to

24 consider. See Xue Hong Yang v. U.S. Dep’t of Justice, 426

25 F.3d 520, 522 (2d Cir. 2005). The applicable standards of

2
1 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);

2 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d

3 Cir. 2008). For asylum applications governed by the REAL ID

4 Act, such as the application in this case, the agency may,

5 considering the totality of the circumstances, base a

6 credibility finding on an asylum applicant’s demeanor, the

7 plausibility of his account, and inconsistencies in his

8 statements, without regard to whether they go “to the heart

9 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);

10 Xiu Xia Lin, 534 F.3d at 163-64. 

11 Substantial evidence supports the agency’s adverse

12 credibility determination. In finding petitioners not

13 credible, the agency reasonably relied in part on their

14 anxious and evasive demeanor while testifying about certain

15 aspects of their claim. See 8 U.S.C. § 1158(b)(1)(B)(iii);

16 see also Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir.

17 2005). Moreover, “[w]e can be still more confident in our

18 review of observations about an applicant’s demeanor where,

19 as here, they are supported by specific examples of

20 inconsistent testimony.” Li Hua Lin v. U.S. Dep’t of

21 Justice, 453 F.3d 99, 109 (2d Cir. 2006). Indeed, the

22 record supports the IJ’s determination that Tang’s demeanor

3
1 became evasive when he was questioned regarding the details

2 of Zheng’s hospital room, and during that testimony he

3 provided details that were inconsistent with Zheng’s

4 testimony. See id. Furthermore, although petitioners argue

5 that they should have been provided an opportunity to

6 explain an inconsistency in their testimony regarding

7 whether Tang ever returned to work following Zheng’s

8 abortion, the agency is not required to solicit explanations

9 for self-evident inconsistencies and petitioners fail to

10 suggest what explanation they would have proffered had they

11 been so questioned. See Ming Shi Xue v. BIA, 439 F.3d 111,

12 125 (2d Cir. 2006).

13 In addition, the agency reasonably questioned the

14 plausibility of certain aspects of petitioners’ testimony,

15 see 8 U.S.C. § 1158(b)(1)(B)(iii); see also Siewe v.

16 Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (holding that

17 an implausibility finding that is based on “speculation that

18 inheres in inference is not ‘bald’ if the inference is made

19 available to the factfinder by record facts, or even a

20 single fact, viewed in the light of common sense and

21 ordinary experience”), and noted the absence of letters or

22 testimony from Zheng’s relatives in the United States, see

23 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

4
1 Thus, we find that the agency’s adverse credibility

2 determination provided an adequate basis for denying asylum,

3 withholding of removal, and CAT relief insofar as those

4 claims were based on the same factual predicate. See Paul

5 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 

6 For the foregoing reasons, the petition for review is

7 DENIED. As we have completed our review, any stay of

8 removal that the Court previously granted in this petition

9 is VACATED, and any pending motion for a stay of removal in

10 this petition is DISMISSED as moot. Any pending request for

11 oral argument in this petition is DENIED in accordance with

12 Federal Rule of Appellate Procedure 34(a)(2), and Second

13 Circuit Local Rule 34.1(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17

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