         10-2523-ag                                                                     BIA
         Zheng v. Holder                                                        Schoppert, IJ
                                                                               A088 527 838

                            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 17th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                    Circuit Judges.
11       _______________________________________
12
13       YINGSHENG ZHENG,
14                Petitioner,
15
16                         v.                                   10-2523-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Yingsheng Zheng, pro se, New York,
24                                     NY.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Shelley R. Goad, Assistant
28                                     Director; Carmel A. Morgan, Trial
29                                     Attorney; Helen Rangel, Law Intern,
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   Board of Immigration Appeals (“BIA”) decision, it is hereby

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

 4   is DENIED.

 5       Yingsheng Zheng, a native and citizen of the People’s

 6   Republic of China, seeks review of a May 27, 2010, decision

 7   of the BIA affirming the August 25, 2008, decision of

 8   Immigration Judge (“IJ”) Douglas B. Schoppert, which denied

 9   his application for asylum, withholding of removal, and

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

11   Yingsheng Zheng, No. A088 527 838 (B.I.A. May 27, 2010),

12   aff’g No. A088 527 838 (Immig. Ct. N.Y. City Aug. 25, 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 have reviewed

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

17   Chen 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       The only issue before us is whether the agency erred in

22   denying Zheng’s application for asylum and withholding of

23   removal, as Zheng failed to exhaust his challenge to the

                                  2
 1   denial of CAT relief.     See 8 U.S.C. § 1252(d)(1); Karaj v.

 2   Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (citing Beharry

 3   v. Ashcroft, 329 F.3d 51, 59 (2d Cir. 2003)).

 4       For asylum applications such as Zheng’s, governed by

 5   the amendments made to the Immigration and Nationality Act

 6   by the REAL ID Act of 2005, the agency may, considering the

 7   totality of the circumstances, base a credibility finding on

 8   an asylum applicant’s “demeanor, candor, or responsiveness,”

 9   the plausibility of his or her account, and inconsistencies

10   in his or her statements, without regard to whether they go

11   “to the heart of the applicant’s claim.”     See 8 U.S.C.

12   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

13   167 (2d Cir. 2008).     We will “defer to an IJ’s credibility

14   determination unless, from the totality of the

15   circumstances, it is plain that no reasonable fact-finder

16   could make” such a ruling.     Xiu Xia Lin, 534 F.3d at 167.

17       In this case, the agency reasonably based its adverse

18   credibility determination on omissions, inconsistencies, and

19   implausibilities in Zheng’s asylum application and his

20   testimony, as well as on his demeanor.

21       Zheng indicated in his asylum application that he was

22   visited by family planning officials on two occasions;

23   during the first visit they threatened him, and during the

                                     3
 1   second visit they attempted to arrest him in order to have

 2   him sterilized, but he eluded them and went into hiding.      He

 3   testified however that during the first visit, the officials

 4   not only threatened him, but also assaulted him.     There were

 5   also discrepancies as to when Zheng went into hiding - he

 6   stated the date as September 2006 in his asylum application,

 7   but testified that he went into hiding in July 2006, before

 8   changing his testimony to September 2006.    These

 9   inconsistencies and the omissions were proper grounds for

10   the IJ’s adverse credibility finding.     See 8 U.S.C.

11   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166.

12       The IJ further based his adverse credibility finding on

13   Zheng’s demeanor, and on implausibilities in parts of

14   Zheng’s account.   Specifically, as to demeanor, the IJ found

15   that Zheng was testifying in a “rehearsed, non-spontaneous

16   manner,” his answers were often vague, and “at times non-

17   responsive to questions.”   We generally defer to an IJ’s

18   demeanor findings, and will do so here.     See Majidi v.

19   Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005); see also

20   8 U.S.C. § 1158(b)(1)(B)(iii).

21       Finally, the IJ found Zheng’s account of his escape

22   from family planning officials to be implausible.     Zheng


                                   4
 1   testified that in September 2006, family planning officials

 2   came to his home, and he had an argument with them, and

 3   then, when they tried to arrest him, he escaped out the back

 4   door of his home.   In his asylum application, describing the

 5   same incident, Zheng stated that family planning officials

 6   “stepped forward to arrest” him.     The IJ concluded that,

 7   because, based on Zheng’s description, the family planning

 8   officials “were clearly in close physical proximity” to him,

 9   it was not plausible “that under those circumstances [Zheng]

10   may have been able to run away without being apprehended.”

11   Accordingly, the implausibility finding provides additional

12   support for the adverse credibility determination.        See

13   Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007).

14       The BIA, in turn, affirmed the IJ’s adverse credibility

15   determination, explicitly addressing Zheng’s omission,

16   inconsistencies, and demeanor.     Given the totality of the

17   circumstances, including Zheng’s omission, inconsistencies,

18   implausibility, and demeanor, substantial evidence supports

19   the agency’s adverse credibility determination.     See

20   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

21   As the only basis for Zheng’s claim depends on his

22   credibility, the adverse credibility determination is also

23   dispositive of his request for withholding of removal.          See
                                   5
 1   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wu Biao

 2   Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003).

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

 7   this petition is DISMISSED as moot. Any pending request for

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14
15




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