13-2353

Zheng v. Lynch

BIA

Zagzoug, IJ

A089 880 293

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

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 26th day of February, two thousand sixteen.

PRESENT:

ROSEMARY S. POOLER,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

XIU ZHENG,

Petitioner,

v. 13-2353

NAC

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL1

,

Respondent.

_____________________________________

 

FOR PETITIONER: Lee Ratner, Law Offices of Michael

Brown, New York, New York.

1 Loretta E. Lynch is automatically substituted as

the respondent in this case pursuant to Federal Rule of

Appellate Procedure 43(c)(2).
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

General; Paul Fiorino, Senior

Litigation Counsel; Franklin M.

Johnson, Jr., 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.

Xiu Zheng, a native and citizen of the People’s

Republic of China, seeks review of the BIA’s May 21, 2013

decision, affirming an Immigration Judge’s (“IJ”) February

14, 2012 denial of his application for asylum and

withholding of removal on credibility grounds, and denying

in the first instance his motion to remand. In re Xiu

Zheng, No. A089 880 293 (B.I.A. May 21, 2013), aff’g No.

A089 880 293 (Immig. Ct. N.Y. City Feb. 14, 2012). We

assume the parties’ familiarity with the underlying facts

and procedural history of this case. 

Under the circumstances of this case, we have reviewed

the IJ’s decision as modified and supplemented by the BIA. 

See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271

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(2d Cir. 2005). 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); Li Yong Cao v. 

U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005).

Adverse Credibility Determination

The agency may, “[c]onsidering the totality of the

circumstances,” base a credibility finding on an asylum

applicant’s demeanor, and inconsistencies in his statements

and other record evidence regardless of whether the

inconsistencies go “to the heart of the applicant’s claim.” 

8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

64. Substantial evidence supports the agency’s

determination that Zheng was not credible. 

The agency reasonably relied in part on Zheng’s

demeanor, noting that he appeared to testify from a

memorized script. See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi

v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). The

agency’s demeanor finding and the overall credibility

determination are bolstered by record inconsistencies

related to what year Zheng was detained in China, where he

lived when he first arrived in the United States, whether

his sister was in compliance with her U.S. visa, and how he

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obtained a copy of his passport from China. See Li Hua Lin

v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006);

see also Xiu Xia Lin, 534 F.3d at 165-66. Having questioned

Zheng’s credibility, the agency reasonably relied further on

his failure to provide certain evidence corroborating his

claim or rehabilitating his testimony. See Biao Yang v.

Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 

Given the demeanor, inconsistency, and corroboration

findings, the agency’s adverse credibility determination is

supported by substantial evidence, and is dispositive of

Zheng’s claims for asylum and withholding of removal. See

8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006). Accordingly, we do not reach the

agency’s alternative basis for denying asylum—Zheng’s

failure to timely file his application. 

Motion to Remand

“A motion to remand that relies on newly available

evidence is held to the substantive requirements of a motion

to reopen.” Li Yong Cao, 421 F.3d at 156. Therefore, the

agency may deny a motion to remand based on “the movant’s

failure to . . . [provide] material, previously unavailable

evidence that would be introduced at a new hearing.” Id. 

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We find no error in the BIA’s determination that

Zheng’s sister’s affidavit was previously available and

could have been presented at his hearing before the IJ. See

8 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292,

294 & n.3 (2d Cir. 2006) (per curiam) (looking to the date

on which the IJ closed the record as the date before which

the evidence must have been unavailable). Accordingly, the

BIA did not abuse its discretion in denying Zheng’s motion

to remand. See Li Yong Cao, 421 F.3d 156-57. 

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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