     17-4008
     Zheng v. Barr
                                                                                                                   BIA
                                                                                                               Leeds, IJ
                                                                                                           A087 798 604
                            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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 17th day of January, two thousand twenty.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            MICHAEL H. PARK,
 9                 Circuit Judges.1
10   _____________________________________
11
12   ZHE HUI ZHENG,
13            Petitioner,
14
15                    v.                                                                     17-4008
16                                                                                           NAC
17   WILLIAM P. BARR, UNITED STATES
18   ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                                  Adedayo O. Idowu, New York, NY.
23
24   FOR RESPONDENT:                                  Joseph H. Hunt, Assistant
25                                                    Attorney General; Linda S.
26                                                    Wernery, Assistant Director;
27                                                    Gerard M. Alexander, Trial
28                                                    Attorney, Office of Immigration
              1
                Judge Christopher F. Droney, who was originally assigned to the panel, retired from the Court, effective
              January 1, 2020, prior to the resolution of this case. The remaining two members of the panel, who are in
              agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone,
              140 F.3d 457, 458–59 (2d Cir. 1998).
1                             Litigation, United States
2                             Department of Justice, Washington,
3                             DC.
4        UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8        Petitioner Zhe Hui Zheng, a native and citizen of the

9    People’s Republic of China, seeks review of a December 1,

10   2017, decision of the BIA affirming an April 5, 2017, decision

11   of an Immigration Judge (“IJ”) denying his application for

12   asylum,   withholding   of   removal,   and   relief    under   the

13   Convention Against Torture (“CAT”).     In re Zhe Hui Zheng, No.

14   A087 798 604 (B.I.A. Dec. 1, 2017), aff’g No. A087 798 604

15   (Immig. Ct. N.Y. City Apr. 5, 2017).     We assume the parties’

16   familiarity with the underlying facts and procedural history

17   in this case.

18       Under the circumstances of this case, we have reviewed

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

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

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

22   § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

23   Cir. 2018).

24       “Considering the totality of the circumstances, and all

                                     2
1    relevant factors, a trier of fact may base a credibility

2    determination on the demeanor, candor, or responsiveness of

3    the applicant . . . , the consistency between the applicant’s

4    or witness’s written and oral statements . . . , the internal

5    consistency of each such statement, [and] the consistency of

6    such statements with other evidence of record . . . without

7    regard to whether an inconsistency, inaccuracy, or falsehood

8    goes to the heart of the applicant’s claim, or any other

9    relevant factor.”     8 U.S.C. § 1158(b)(1)(B)(iii).             “We defer

10   . . . to an IJ’s credibility determination unless, from the

11   totality of the circumstances, it is plain that no reasonable

12   fact-finder could make such an adverse credibility ruling.”

13   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);

14   accord Hong Fei Gao, 891 F.3d at 76.              Substantial evidence

15   supports the adverse credibility determination.

16       We defer to the IJ’s demeanor finding, which is supported

17   by the record.     See Jin Chen v. U.S. Dep’t of Justice, 426

18   F.3d 104, 113 (2d Cir. 2005).              The IJ noted that Zheng’s

19   responses on cross examination were inaudible and that he

20   paused   for   long   periods     before    answering.      The     record

21   supports this finding as it reflects that the IJ instructed

22   Zheng multiple times to speak louder and warned him that his

23   whispers   and   pauses   might    call     for   a   negative   demeanor
                                         3
1    finding.      Moreover, as discussed below, “[w]e can be still

2    more    confident   in    our   review     of   observations     about   an

3    applicant’s demeanor where . . . they are supported by

4    specific examples of inconsistent testimony.”              Li Hua Lin v.

5    U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

6           An   inconsistency    among   Zheng’s     statements    about     his

7    father’s presence in China at the time of Zheng’s alleged

8    arrest and his subsequent admission that he and his mother

9    made false statements provide substantial evidence for the

10   adverse credibility determination.              See Siewe v. Gonzales,

11   480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false document

12   or a single instance of false testimony may (if attributable

13   to   the    petitioner)     infect   the    balance   of   the    alien’s

14   uncorroborated      or    unauthenticated        evidence.”).     Zheng’s

15   application, his mother’s letter, and his initial testimony

16   all asserted that Zheng’s father was in China at the time of

17   Zheng’s arrest and was involved in paying Zheng’s bail and

18   taking him to the hospital after his detention.                When asked

19   at the hearing, he asserted that his father had never lived

20   in the United States.       However, when presented with evidence

21   that his father had lived in the United States, Zheng changed

22   his testimony and conceded that his father had been in the

23   United States at the time of his arrest.               The IJ was not
                                          4
1    compelled to credit Zheng’s evolving explanations for his

2    false statements, i.e., that he was nervous, worried that his

3    father’s undocumented status would affect his asylum claim,

4    missed his father, and wanted to protect his father.            See

5    Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

6    petitioner must do more than offer a plausible explanation

7    for his inconsistent statements to secure relief; he must

8    demonstrate that a reasonable fact-finder would be compelled

9    to credit his testimony.” (internal quotations omitted)); see

10   also Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009)

11   (“We again reject the notion that a petitioner’s claim that

12   she was nervous and distracted during the credible fear

13   interview automatically undermines or negates its reliability

14   as a source of her statements.”).

15       Having    questioned   Zheng’s     credibility,    the   agency

16   reasonably   relied   on   his    failure   to   rehabilitate   his

17   testimony    with   reliable     corroborating   evidence.      “An

18   applicant’s failure to corroborate his or her testimony may

19   bear on credibility, because the absence of corroboration in

20   general makes an applicant unable to rehabilitate testimony

21   that has already been called into question.”          Biao Yang v.

22   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).       “We defer to the

23   agency’s determination of the weight afforded to an alien’s
                                       5
1    documentary evidence.”        Y.C. v. Holder, 741 F.3d 324, 332 (2d

2    Cir. 2013).     The agency was not required to credit Zheng’s

3    documentary evidence because his mother’s letter contained a

4    false statement, she was an interested witness not subject to

5    cross-examination, and the authenticity of that letter and

6    the other documents turned on Zheng’s credibility.                  Id.; see

7    also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA

8    2010) (finding that unsworn letters from the alien’s friends

9    and family did not provide substantial support because they

10   were    from   interested     witnesses      not    subject    to     cross-

11   examination), rev’d on other grounds, Hui Lin Huang v. Holder,

12   677 F.3d 130 (2d Cir. 2012).

13          Given the demeanor finding, the inconsistencies and false

14   statements,     and   the   lack    of   reliable    corroboration,     the

15   adverse credibility determination is supported by substantial

16   evidence.      See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

17   534 F.3d at 167; Biao Yang, 496 F.3d at 273.                  The adverse

18   credibility      determination       is    dispositive        of    asylum,

19   withholding of removal, and CAT relief because all three forms

20   of   relief    were   based    on    the   same     discredited     factual

21   predicate.     See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d

22   Cir. 2006).

23          For the foregoing reasons, the petition for review is
                                          6
1   DENIED.   All pending motions and applications are DENIED and

2   stays VACATED.

3                               FOR THE COURT:
4                               Catherine O’Hagan Wolfe,
5                               Clerk of Court
6




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