         09-2030-ag
         Zheng v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A096 401 442
                            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
 4       New York, on the 2 nd day of March, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                JOSEPH M. McLAUGHLIN,
10                GERARD E. LYNCH,
11                       Circuit Judges.
12       _______________________________________
13       JIAN XUN ZHENG, ALSO KNOWN AS KENNY
14       KANG JADE,
15                Petitioner,
16
17                         v.                                   09-2030-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Lee Ratner, Law Offices of Michael
25                                     Brown, New York, New York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Susan K. Houser, Senior
29                                     Litigation Counsel; Jacob A.
30                                     Bashyrov, Trial Attorney, Office of
31                                     Immigration Litigation, United
32                                     States Department of Justice,
33                                     Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Petitioner Jian Xun Zheng, a native and citizen of the

6    People’s Republic of China, seeks review of an April 21,

7    2009, order of the BIA affirming the April 30, 2008,

8    decision of Immigration Judge (“IJ”) Steven R. Abrams

9    denying his application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).      In

11   re Jian Xun Zheng, No. A096 401 442 (B.I.A. Apr. 21, 2009),

12   aff’g No. A096 401 442 (Immig. Ct. N.Y. City Apr. 30, 2008).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review the

16   decision of the IJ as supplemented by the BIA.   See Xian

17   Tuan Ye v. DHS, 446 F.3d 289, 293, 296 (2d Cir. 2006).      The

18   applicable standards of review are well-established.     See 8

19   U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

20   F.3d 162, 167 (2d Cir. 2008).

21       The IJ found Zheng not credible because: (1) his

22   demeanor at his hearing was “vague” and “elusive”;

23   (2) although he testified that his church was destroyed by



                                     2
1    Chinese authorities, neither his asylum application nor the

2    letters from his wife and fellow churchgoer made any such

3    assertion; (3) he testified inconsistently regarding when

4    the church was destroyed; (4) the letter from his wife was

5    “suspect” because it was not the first version of the letter

6    and because Zheng asked her to rewrite it; (5) his testimony

7    that he was fired from his job was contradicted by his

8    friend’s letter and his wife’s letter stating that he quit;

9    and (6) the dates on the photographs depicting the church

10   before and after it was destroyed were the same.

11   Additionally, the BIA found that Zheng’s testimony that he

12   began attending a particular church in California in May

13   2005 was contradicted by the church pastor’s letter stating

14   that he began attending church services in May 2004.

15       Zheng only challenges the agency’s last two findings,

16   arguing that he adequately explained the date on the

17   photographs and the inconsistency identified by the BIA.

18   Although Zheng’s explanations might be plausible, no

19   reasonable factfinder would have been compelled to credit

20   his explanations.   See Majidi v. Gonzales, 430 F.3d 77,

21   80-81 (2d Cir. 2005); see also Siewe v. Gonzales, 480 F.3d

22   160, 167-68 (2d Cir. 2007).   Regardless, he has waived any

23   challenge to the IJ’s other findings, which stand as valid



                                   3
1    bases for the IJ’s adverse credibility determination.        See

2    Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008).

3    Thus, substantial evidence supports that determination.        See

4    Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).     As

5    Zheng was unable to meet his burden for asylum, he has

6    necessarily failed to meet the higher burden required for

7    withholding of removal.   See Paul v. Gonzales, 444 F.3d 148,

8    156 (2d Cir. 2006).

9        Although Zheng sets forth the standard for CAT relief

10   in his brief before this Court, he does not challenge the

11   basis of the IJ’s denial of that relief – that he did not

12   testify that he would be subject to anything amounting to

13   torture – or otherwise argue that any evidence established a

14   likelihood of torture upon his return to China.

15   Accordingly, we deem any such challenge waived.   See Yueqing

16   Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

17   2005).

18       For the foregoing reasons, the petition for review is

19   DENIED.   As we have completed our review, the pending motion

20   for a stay of removal in this petition is DISMISSED as moot.

21
22                               FOR THE COURT:
23                               Catherine O’Hagan Wolfe, Clerk
24
25




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