    16-2446
    Zheng v. Sessions
                                                                                                  BIA
                                                                                        Christensen, IJ
                                                                                        A089 700 618

                             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.

            At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the 12th day of October, two thousand seventeen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                JON O. NEWMAN,
                RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
    _____________________________________

    HUANG ZHENG,

                        Petitioner,

                        v.                                                   16-2446
                                                                             NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,

                Respondent.
    _____________________________________

    FOR PETITIONER:                         Michael Brown, New York, N.Y.

    FOR RESPONDENT:                         Chad A. Readler, Acting Assistant Attorney General;
                                            Janette L. Allen, Senior Litigation Counsel; Jessica D.
                                            Strokus, Trial Attorney, Office of Immigration
                                            Litigation, United States Department of Justice,
                                            Washington, DC.
         UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is DENIED.

         Petitioner Huang Zheng, a native and citizen of the People’s Republic of China, seeks

review of a June 27, 2016, decision of the BIA affirming a June 10, 2015, decision of an

Immigration Judge (“IJ”) denying Zheng’s application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). In re Huang Zheng, No. A089 700 618

(B.I.A. June 27, 2016), aff’g No. A089 700 618 (Immig. Ct. N.Y. City June 10, 2015). We

assume the parties’ familiarity with the underlying facts and procedural history in this case.

         Under the circumstances of this case, we have reviewed the IJ’s decision as modified by

the BIA. Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Accordingly, we

address only the adverse credibility determination.       Id.   The standards of review are well

established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

2008).

         The agency may, “[c]onsidering the totality of the circumstances and all relevant factors,”

base an adverse credibility determination on “the inherent plausibility of the applicant’s or

witness’s account,” an applicant’s “inaccuracies or falsehoods,” and inconsistencies or omissions

in an applicant’s statements and other evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

F.3d at 163-64, 166-67. “We defer . . . to an IJ’s credibility determination unless, from the

totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse

credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.




                                                  2
       Substantial evidence supports the agency’s conclusion that Zheng was not credible. First,

the IJ reasonably determined that that one or both of the letters submitted in support of Zheng’s

asylum application were fraudulent. Zheng testified that his mother handwrote a letter

corroborating his religious persecution, mailed the original to him in the United States, and did

not retain any copies of the document. App. 221. Zheng subsequently requested that his mother

send him a new letter via facsimile, and testified that his mother “went over to [a] relative, told

her verbally what she wanted to say . . . , [and] the relative wrote it down for her.” App. 222.

Zheng submitted both letters in his application. Id.

       Despite Zheng’s testimony that his mother did not retain a copy of the original letter, the

language of her two submissions was identical.1 App. 150. The IJ thus apparently concluded that

both letters must have been copied from another source and were fraudulent. See id. Although

Zheng subsequently argued on appeal to the BIA that his mother had, in fact, retained a copy of

the original letter, App. 79-80, a “petitioner must do more than offer a plausible explanation for

his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder

would be compelled to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

2005) (quotation marks omitted). Zheng has not done so here.2



1
 To the extent that there were any variations between the two letters, they were solely in the
number of characters per line and lines per page. App. 149.
2
 Although Zheng submitted an affidavit from his mother supporting his new account on appeal,
the BIA did not err in declining to reopen the proceedings below for consideration of this new
evidence. See Cao v. U.S. Dep't of Justice, 421 F.3d 149, 157 (2d Cir. 2005) (reviewing denial
under the abuse of discretion standard). In order to reopen the proceedings for supplementation
of the factual record, a movant must present “material, previously unavailable evidence,” Li
Yong Cao v. U.S. Dep't of Justice, 421 F.3d 149, 156 (2d Cir. 2005), and satisfy the “‘heavy
burden’ of demonstrating that the proffered new evidence would likely alter the result in [his]

                                                 3
       Given these circumstances, the IJ also did not err in concluding that the letters submitted

from Zheng’s childhood friend, Mr. Wu, were fraudulent. As with Mr. Zheng’s mother, Mr. Wu

submitted two handwritten letters allegedly created on different days but containing the exact

same language. Although it is possible that Mr. Wu retained a copy of his original letter and used

it to create his subsequent submission, “a finding of fraudulent evidence redounds upon all

evidence the probative force of which relies in any part on the credibility of the applicant.” See

Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). The IJ accordingly did not err in finding

that Mr. Wu’s letters were fraudulent given that they were submitted to the agency under the

precise same suspicious circumstances as those from Mr. Zheng’s mother.

       The IJ’s adverse credibility finding is further buttressed by other evidence in the record,

including omissions in a letter from Zheng’s church in China. Xiu Xia Lin, 534 F.3d at 166-67 &

n.3 (approving of agency’s reliance on omissions from letters).          The letter contains basic

biographical information about Zheng and states that he attended the church, but it omits that

Zheng was arrested, detained, or mistreated by Chinese authorities. The agency reasonably

rejected Zheng’s explanation that the church may have possessed only that basic information and

reasonably inferred that church leaders would have been aware of the arrest because Zheng

testified that he had attended the church for over two years prior to his first arrest and was

arrested with several other church members as they participated in church activities. See Majidi,

430 F.3d at 80-81.


case.” Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (quoting Immig. &
Naturalization Serv. v. Abudu, 485 U.S. 94, 110 (1988)). The BIA here found that the testimony
set forth in his mother’s affidavit was available to Zheng prior to his master hearing, App. 62,
and Zheng does not challenge the BIA’s determination on appeal to this Court. We therefore find
this challenge waived. See Zhang v. Gonzales, 426 F.3d 540, 542 (2d Cir. 2005).

                                                 4
       Finally, the agency reasonably determined that Zheng’s evidence of medical treatment at

a government hospital during the time he was allegedly in hiding undermined the plausibility of

his claim, particularly as he previously sought medical treatment from an unlicensed doctor for

injuries incurred in detention, but then risked going to a government hospital for treatment for a

cold. See 8 U.S.C. § 1158(b)(1)(b)(iii); Siewe, 480 F.3d at 169 (deferring to implausibility

finding “[s]o long as an inferential leap is tethered to the evidentiary record”).

       Because Zheng’s claims all relied on his credibility, the adverse credibility determination

is dispositive of asylum, withholding of removal, and CAT relief. Paul v. Gonzales, 444 F.3d

148, 156-57 (2d Cir. 2006).

       For the foregoing reasons, the petition for review is DENIED. As we have completed our

review, the pending motion for a stay of removal in this petition is DISMISSED as moot.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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