     17-556
     Zheng v. Sessions
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A200 241 362


                              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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 30th day of October, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   BIN ZHENG,
14
15                             Petitioner,
16
17                       v.                                      17-556
18                                                               NAC
19
20   JEFFERSON B. SESSIONS III,
21   UNITED STATES ATTORNEY GENERAL,
22
23                 Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                         Lee   Ratner,  Law   Offices  of
27                                           Michael Brown, PC, New York, NY.
28
 1   FOR RESPONDENT:                     Chad A. Readler, Principal Deputy
 2                                       Assistant Attorney General; Cindy
 3                                       S. Ferrier, Assistant Director;
 4                                       Kimberly    A.    Burdge,    Trial
 5                                       Attorney, Office of Immigration
 6                                       Litigation,     United      States
 7                                       Department       of       Justice,
 8                                       Washington, DC.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

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

13   is DENIED.

14       Petitioner       Bin   Zheng,    a   native   and   citizen   of   the

15   People’s Republic of China, seeks review of a February 3,

16   2017, decision of the BIA affirming an April 19, 2016,

17   decision   of   an   Immigration      Judge   (“IJ”)    denying   Zheng’s

18   application for asylum, withholding of removal, and relief

19   under the Convention Against Torture (“CAT”).                In re Bin

20   Zheng, No. A200 241 362 (B.I.A. Feb. 3, 2017), aff’g No. A200

21   241 362 (Immig. Ct. N.Y. City Apr. 19, 2016).             We assume the

22   parties’ familiarity with the underlying facts and procedural

23   history in this case.

24       Under the circumstances of this case, we have reviewed

25   the IJ’s decision as supplemented by the BIA.              See Yan Chen

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

27   standards of review are well established.                  See 8 U.S.C.

                                          2
1    § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

2    66 (2d Cir. 2008).

3           The governing REAL ID Act credibility standard provides

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

5    circumstances” and may base a credibility finding on an

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

7    plausibility of his account, and inconsistencies or omissions

8    in   his   or    his    witness’s    statements,         “without     regard     to

9    whether” they go “to the heart of the applicant’s claim.”                         8

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

11   163-64, 166-67.          “A petitioner must do more than offer a

12   plausible explanation for his inconsistent statements to

13   secure relief; he must demonstrate that a reasonable fact-

14   finder would be compelled to credit his testimony.”                           Majidi

15   v.   Gonzales,     430    F.3d    77,   80    (2d      Cir.   2005)   (internal

16   quotation       marks    omitted).          “We    defer . . . to        an    IJ’s

17   credibility determination unless . . . it is plain that no

18   reasonable fact-finder could make such an adverse credibility

19   ruling.” Xiu Xia Lin, 534 F.3d at 167. For the reasons that

20   follow, we conclude that the agency did not err in finding

21   Zheng not credible.

22


                                             3
1          The agency reasonably relied on the inconsistency between

2    Zheng’s testimony and his church’s letter about when his

3    church learned that he had left China.        See id. (holding that

4    an “IJ may rely on any inconsistency or omission in making an

5    adverse credibility determination as long as the ‘totality of

6    the circumstances’ establishes that an asylum applicant is

7    not credible” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))). When

8    asked if his church knew that he left China, Zheng responded

9    that it did because he asked fellow church members to write

10   letters in support of his asylum application in July 2012.

11   However, the church’s letter was dated March 2012, Zheng was

12   unable to proffer any explanation for the date discrepancy at

13   his hearing, and the IJ noted a long pause on the record when

14   Zheng was asked for an explanation.           Moreover, the BIA did

15   not err in rejecting Zheng’s explanation that it was unclear

16   if the questions concerned the church’s March 2012 letter or

17   a July 2012 letter from his church friend because Zheng

18   testified that his church knew he left China only because he

19   asked his fellow church members to write letters in July 2012,

20   and   he   did   not   identify   how   his   church   obtained   the

21   information before July 2012.         See Majidi, 430 F.3d at 80.

22   The import of this finding is substantial: if the church


                                       4
1    letter predates the point when Zheng claimed his church became

2    aware he had left China, then the letter cannot be genuine.

3    See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A]

4    single false document . . . may (if attributable to the

5    petitioner) infect the balance of the alien’s uncorroborated

6    or unauthenticated evidence.             An IJ may, either expressly or

7    impliedly, rely on falsus in uno to discredit evidence that

 8   does    not    benefit     from    corroboration       or   authentication

 9   independent of the petitioner’s own credibility.”).

10          The adverse credibility determination is bolstered by

11   the IJ’s observations of Zheng’s demeanor.                   See 8 U.S.C.

12   § 1158(b)(1)(B)(iii).            “[D]emeanor is paradigmatically the

13   sort of evidence that a fact-finder is best positioned to

14   evaluate,” Li Zu Guan v. INS, 453 F.3d 129, 140 (2d Cir.

15   2006), and we give particular deference to the agency’s

16   assessment, especially where, as here, the demeanor finding

17   is linked to inconsistencies, Li Hua Lin v. U.S. Dep’t of

18   Justice,      453   F.3d   99,    109    (2d   Cir.    2006).     The   IJ’s

19   observation that Zheng’s testimony on cross examination was

20   nonresponsive is supported by the evidence of Zheng’s long

21   pause when he was asked about the church’s letter, along with

22   his    nonresponsive       answers      when   asked   if   he   attended   a


                                             5
1    government-sanctioned church and why he continued attending

2    his church in China while under surveillance.           See id.; see

3    also Siewe, 480 F.3d at 168-69 (“[S]peculation that inheres

4    in inference is not ‘bald’ if the inference is made available

5    to the factfinder by record facts, or even a single fact,

6    viewed in the light of common sense and ordinary experience.

7    So long as an inferential leap is tethered to the evidentiary

8    record, we will accord deference to the finding.”).

9           Zheng does not challenge the agency’s findings that his

10   testimony was vague concerning the first police visit to his

11   home    and   the   basis   for   his   claim   that   he   was   under

12   surveillance.       Nor does he challenge that his documentary

13   evidence was insufficient to rehabilitate his credibility.

14   He has therefore waived review of these findings, which stand

15   as appropriate bases for the agency’s adverse credibility

16   determination.      See Norton v. Sam’s Club, 145 F.3d 114, 117

17   (2d Cir. 1998) (“Issues not sufficiently argued in the briefs

18   are considered waived and normally will not be addressed on

19   appeal.”); Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d

20   Cir. 2008).

21          We do recognize, however, an error in the IJ’s conclusion

22   that Zheng gave differing descriptions of his arrest and


                                        6
1    detention in China. Zheng’s application reported that he was

2    arrested in China and held in a cell with only a table, a

3    chair, and a lamp for a total of 48 hours.               Zheng testified

4    on cross examination that he was locked in an interrogation

5    room but was not “imprisoned.”             Although when subsequently

6    asked how long he was in prison, Zheng responded 48 hours,

7    the IJ’s reliance on this assertion as an inconsistency is

8    misplaced because the underlying descriptions of where and

9    how long he was held were consistent.

10       Even    with    this    error,       and   even    crediting     Zheng’s

11   challenge to the agency’s finding that his testimony was vague

12   concerning his imputed political opinion and his father’s

13   whistleblowing activities and death, remand would be futile

14   given the support for the agency’s credibility determination

15   set forth above.        Li Hua Lin, 453 F.3d at 106-07 (observing

16   that remand is futile if the agency’s “errors are relatively

17   minor in light of the record as a whole”; for example, “where

18   the IJ or BIA’s reliance on an erroneous aspect of its

19   reasoning   is     so   tangential   that      there    is   no    realistic

20   possibility that the outcome would be different on remand.”

21   (internal quotation marks omitted)).              Both the IJ and BIA

22   found that the discrepancy concerning Zheng’s church letter


                                          7
1    could not be reconciled, and the IJ’s demeanor finding is

2    well supported by the record. We therefore conclude that the

3    adverse    credibility   determination   is   supported   by   the

4    “totality of the circumstances.”     See Xiu Xia Lin, 534 F.3d

5    at 167.     The credibility determination is dispositive of

6    asylum, withholding of removal, and CAT relief because all

7    three claims are based on the same factual predicate.          See

8    Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

9        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

16   34.1(b).

17                            FOR THE COURT:
18                            Catherine O’Hagan Wolfe,
19                            Clerk of Court




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