         12-4784
         Zheng v. Holder
                                                                                        BIA
                                                                                Vomacka, IJ
                                                                               A099 353 434
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 2nd day of January, two thousand fourteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       QING ZHENG,
14                Petitioner,
15
16                         v.                                   12-4784
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gang Zhou, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; David V. Bernal,
27                                     Assistant Director; Yedidya Cohen,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Qing Zheng, a native and citizen of the People’s

 6   Republic of China, seeks review of a November 16, 2012

 7   decision of the BIA affirming the October 27, 2010 decision

 8   of an Immigration Judge (“IJ”) denying her application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Qing Zheng, No.

11   A099 353 434 (B.I.A. Nov. 16, 2012), aff’g No. A099 353 434

12   (Immig. Ct. N.Y. City Oct. 27, 2010).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we review the

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

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

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

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir. 2009).   For applications such as Zheng’s, which are

21   governed by the REAL ID Act of 2005, Matter of S-B-, 24 I. &

22   N. Dec. 42, 45 (BIA 2006), the agency may, “[c]onsidering

23   the totality of the circumstances . . . base a credibility

                                   2
 1   determination on the demeanor, candor, or responsiveness of

 2   the applicant[, and] . . . the consistency [of the

 3   applicant’s] statements with other evidence of record . . .

 4   without regard to whether an inconsistency, inaccuracy, or

 5   falsehood goes the heart of the applicant’s claim.”       8

 6   U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v.

 7   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

 8       The record supports the agency’s determination that

 9   Zheng provided inconsistent and implausible testimony

10   concerning her entry into the United States and conviction

11   for visa fraud.    Although Zheng testified that she obtained

12   a fiancée visa and married in good faith, the record

13   contains a plea agreement in Zheng’s criminal case, which

14   indicates that Zheng knowingly and intentionally entered

15   into a false marriage to procure her visa.       Accordingly, the

16   agency did not err in basing the adverse credibility

17   determination, in part, on this inconsistency.       Xiu Xia Lin,

18   534 F.3d at 167.

19       Furthermore, the agency did not err in finding Zheng’s

20   testimony that she was unaware of the fraud implausible

21   since Zheng also testified that her family paid a large sum

22   of money to procure the visa.       The agency reasoned that it


                                     3
 1   was unlikely that Zheng’s family and purported fiancé

 2   colluded to smuggle her into the United States and kept up

 3   the appearance that Zheng’s engagement and marriage was bona

 4   fide, all without Zheng’s knowledge.      As the IJ based this

 5   inference on facts in the record as well as common sense,

 6   his finding was not in error.       See Siewe v. Gonzales, 480

 7   F.3d 160, 168-69 (2d Cir. 2007) (“The speculation that

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

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

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

11   ordinary experience.”).

12       As the adverse credibility determination alone is

13   dispositive, see id. at 170 (relying on the doctrine of

14   falsus in uno, falsus in omnibus to find that once an IJ

15   concludes that a document is false, he or she is “free to

16   deem suspect other documents (and disbelieve other

17   testimony) that depend for probative weight upon [the

18   applicant’s] veracity.”)), we do not reach the agency’s

19   alternative bases for denial.       See INS v. Bagamasbad, 429

20   U.S. 24, 25 (1976) (“As a general rule courts and agencies

21   are not required to make findings on the issue the decision

22   of which is unnecessary to the results they reach.”).


                                     4
 1       Furthermore, the agency did not violate Zheng’s due

 2   process rights when it declined to consider additional

 3   evidence she tried to submit on the day of her hearing, and

 4   again with her appeal to the BIA.    Zheng received a full and

 5   fair opportunity to present her claims.    See Burger v.

 6   Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (holding that due

 7   process is violated in removal proceedings when an alien is

 8   “denied a full and fair opportunity to present [her]

 9   claims”).   The case had already been continued, and Zheng

10   was given an ample 45-day filing deadline within which to

11   submit evidence at her master calendar hearing.    She did not

12   comply with that deadline.    See 8 C.F.R. § 1003.31(c) (IJ’s

13   are allowed to set filing deadlines and are permitted to

14   reject late filings); Morgan v. Gonzales, 445 F.3d 1549, 551

15   (2d Cir. 2006) (noting that IJ’s “are accorded wide latitude

16   in calendar management”).    Furthermore, Zheng was not

17   prejudiced by the agency’s evidentiary ruling because the

18   additional evidence did not address the underlying

19   credibility problem and therefore would not have altered the

20   outcome in her case.   See Garcia-Villeda v. Mukasey, 531

21   F.3d 141, 149 (2d Cir. 2008) (noting that aliens must also

22   establish “cognizable prejudice” to succeed on a due process

23   claim).
                                    5
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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