         12-550
         Zheng v. Holder
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                               A087 438 732
                            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 19th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                RICHARD C. WESLEY,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _______________________________________
12
13       CHUN QI ZHENG,
14                Petitioner,
15
16                         v.                                   12-550
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Ai Tong, New York, New York.
24
25       FOR RESPONDENT:               Stuart Delery, Acting Assistant
26                                     Attorney General; Nancy E. Friedman,
27                                     Senior Litigation Counsel; Benjamin
28                                     J. Zeitlin, Trial Attorney,; Erin
29                                     Griffith, Law Clerk, Civil Division,
30                                     Office of Immigration Litigation,
31                                     United States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Chun Qi Zheng, a native and citizen of China, seeks

 6   review of a January 25, 2012, decision of the BIA affirming

 7   the August 11, 2010, decision of Immigration Judge (“IJ”)

 8   Douglas Schoppert, denying his application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Chun Qi Zheng, No. A087 438

11   732 (B.I.A. Jan. 25, 2012), aff’g No. A087 438 732 (Immig.

12   Ct. N.Y. City Aug. 10, 2010).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   of this case.

15       Under the circumstances of this case, we have reviewed

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

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

18   applicable standards of review are well-established.         See

19   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

20   562 F.3d 510, 513 (2d Cir. 2009).

21       We conclude that substantial evidence supports the

22   agency’s finding that Zheng’s testimony was not credible,


                                     2
 1   based on inconsistencies between his statements in an asylum

 2   interview and his testimony at the March 2010 merits

 3   hearing.   The agency properly considered the totality of the

 4   circumstances and determined that the inconsistencies

 5   rendered Zheng’s testimony incredible.    See 8 U.S.C. §

 6   1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 7   166 (2d Cir. 2008) (per curiam).

 8       Zheng was given the opportunity to explain the

 9   inconsistencies, and the agency was not compelled to accept

10   his explanations – chiefly, that he was nervous at the

11   asylum interview.    See Majidi v. Gonzales, 430 F.3d 77, 80-

12   81 (2d Cir. 2005).   Moreover, the agency reasonably relied

13   upon the record of the asylum interview, which consisted of

14   a type-written account of the questions posed and Zheng’s

15   answers.   The asylum interview occurred after Zheng had

16   submitted his application, and he provided his own

17   interpreter.   Under these circumstances, the record of the

18   interview was reliable.    See Diallo v. Gonzales, 445 F.3d

19   624, 631-32 (2d Cir. 2006); see also Ming Zhang v. Holder,

20   585 F.3d 715, 725 (2d Cir. 2009); Ramsameachire v. Ashcroft,

21   357 F.3d 169, 180-81 (2d Cir. 2004).

22


                                    3
 1       To the extent Zheng argues that the agency violated his

 2   right to due process by not considering his corroborating

 3   evidence, the claim is without merit.   The record

 4   establishes that the IJ did review the evidence and acted

 5   within his discretion in affording it little weight.     See

 6   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

 7   Cir. 2006).   The IJ’s refusal to credit unauthenticated

 8   documents was not error, where Zheng’s testimony was

 9   otherwise not credible.   See Zhou Yun Zhang v. U.S. INS, 386

10   F.3d 66, 78 (2d Cir. 2004), overruled on other grounds by

11   Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d

12   Cir. 2007).

13       Finally, because Zheng’s withholding of removal and CAT

14   claims depend on the same factual predicate as the asylum

15   claim, the adverse credibility determination also is

16   dispositive of those forms of relief from removal.     See Paul

17   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang

18   v. U.S. Dep't of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

22   is VACATED, and any pending motion for a stay of removal in


                                   4
1   this petition is DISMISSED as moot.   Any pending request for

2   oral argument in this petition is DENIED in accordance with

3   Federal Rule of Appellate Procedure 34(a)(2), and Second

4   Circuit Local Rule 34.1(b).

5                          FOR THE COURT:
6                          Catherine O’Hagan Wolfe, Clerk




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