     16-2730
     Zheng v. Sessions
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A200 165 449

                              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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   22nd day of August, two thousand seventeen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            JON O. NEWMAN,
10            RICHARD C. WESLEY,
11                 Circuit Judges.
12   _____________________________________
13
14   WENJIE ZHENG,
15            Petitioner,
16
17                       v.                                          16-2730
18                                                                   NAC
19   JEFFERSON B. SESSIONS III, UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       David X. Feng, Feng & Associates
25                                         P.C., New York, NY.
26
27   FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
28                                         Attorney General; Anthony C.
29                                         Payne, Assistant Director;
30                                         Colette J. Winston, Trial
31                                         Attorney, Office of Immigration
1                                   Litigation, United States
2                                   Department of Justice,
3                                   Washington, DC.
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 is

8    DENIED.

9          Petitioner Wenjie Zheng, a native and citizen of China,

10   seeks review of a July 8, 2016, decision of the BIA affirming

11   a May 14, 2015, decision of an Immigration Judge (“IJ”) denying

12   Zheng’s application for asylum, withholding of removal, and

13   relief under the Convention Against Torture (“CAT”).         In re

14   Wenjie Zheng, No. A200 165 449 (B.I.A. July 8, 2016), aff’g No.

15   A200 165 449 (Immig. Ct. N.Y. City May 14, 2015).        We assume

16   the   parties’   familiarity   with   the   underlying   facts   and

17   procedural history in this case.

18         Under the circumstances of this case, we have reviewed the

19   IJ’s decision as supplemented by the BIA (i.e., including the

20   BIA’s treatment of the evidence submitted on appeal).       See Yan

21   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).              The

22   applicable standards of review are well established.             See

23   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

24   165-66 (2d Cir. 2008).


                                     2
1        The governing REAL ID Act credibility standard provides

2    that the agency must “[c]onsider[] the totality of the

3    circumstances,” and may base a credibility finding on an

4    applicant’s “demeanor, candor, or responsiveness,” the

5    plausibility of his account, and inconsistencies in his or his

6    witness’s statements, “without regard to whether” they go “to

7    the heart of the applicant’s claim.”    8 U.S.C.

8    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.     “We

9    defer . . . to an IJ’s credibility determination unless . . . it

10   is plain that no reasonable fact-finder could make such an

11   adverse credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.

12   Further, “[a] petitioner must do more than offer a plausible

13   explanation for his inconsistent statements to secure relief;

14   he must demonstrate that a reasonable fact-finder would be

15   compelled to credit his testimony.”    Majidi v. Gonzales, 430

16   F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted).

17   For the reasons that follow, we conclude that substantial

18   evidence supports the agency’s finding that Zheng was not

19   credible.

20       First, the agency reasonably relied on the inconsistency

21   between Zheng’s testimony and evidence concerning his fine.

22   See Xiu Xia Lin, 534 F.3d at 163-64.   Zheng testified that his


                                    3
1    mother paid a 4,000 renminbi fine to secure his release from

2    detention and had received only one receipt.      However, Zheng

3    submitted two different receipts for the 4,000 renminbi

4    payment: one with a serial number of 4983; and a second with

5    a serial number of 4984.    When asked why there were two

6    receipts, Zheng responded that he did not know and that his

7    mother may have received both receipts at the same time or

8    obtained the second receipt later.       But the IJ reasonably

9    rejected this explanation because it did not compellingly

10   explain the inconsistency.    See Majidi, 430 F.3d at 80-81.

11   Moreover, as the IJ observed, neither receipt listed Zheng’s

12   or his mother’s names and there was no information in the

13   receipts linking them to Zheng.

14        Second, the agency reasonably relied on the omission of any

15   mention of Zheng’s summons from his mother’s letters.     See Xiu

16   Xia Lin, 534 F.3d at 166-67 & n.3 (“An inconsistency and an

17   omission are . . . functionally equivalent” for credibility

18   purposes).   Zheng testified that his mother refused to accept

19   the summons when the police tried to serve it at her home, but

20   that she later obtained the summons from the police station to

21   support Zheng’s asylum claim.       However, Zheng’s mother’s

22   letters do not mention the summons and state only that the police


                                     4
1    came looking for Zheng.      When asked about the omission, Zheng

2    explained that his mother may not have mentioned the summons

3    because she did not accept it and did not think it was important.

4    The IJ was not required to accept this explanation.       See Majidi,

5    430 F.3d at 80-81.

6         Third, the Government is correct that Zheng has waived

7    review of the IJ’s demeanor finding by failing to challenge it

8    in   his   brief,   and   that    finding   therefore   stands   as   an

9    appropriate basis for the credibility determination.                  See

10   Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues

11   not sufficiently argued in the briefs are considered waived and

12   normally will not be addressed on appeal.”); Xiu Xia Lin, 534

13   F.3d at 163-64 & n.2.            Zheng also does not challenge the

14   agency’s treatment of his corroborating evidence or the BIA’s

15   treatment of his evidence submitted on appeal.          And, although

16   Zheng challenges the inconsistency about whether he was struck

17   with a book in detention, neither the IJ nor the BIA relied on

18   this inconsistency to support the credibility determination.

19        Given the agency’s foregoing demeanor, omission, and

20   inconsistency findings, the totality of the circumstances

21   supports the adverse credibility determination.           See Xiu Xia

22   Lin, 534 F.3d at 165-66.         A reasonable adjudicator would not


                                          5
1    be compelled to conclude otherwise.    Id. at 167.   The

2    credibility finding is dispositive of Zheng’s claims for

3    asylum, withholding of removal, and CAT relief because those

4    claims are based on the same discredited factual predicate.

5    See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

6        For the foregoing reasons, the petition for review is

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

8    that the Court previously granted in this petition is VACATED,

9    and any pending motion for a stay of removal in this petition

10   is DISMISSED as moot.    Any pending request for oral argument

11   in this petition is DENIED in accordance with Federal Rule of

12   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

13   34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk




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