         12-4528
         Zheng v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A094 793 289
                            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 16th day of January, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       WEN ZHENG, AKA ZHENG WEN,
14                Petitioner,
15
16                         v.                                   12-4528
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Adedayo O. Idowu, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Linda S. Wernery, Assistant
27                                     Director; Kerry A. Monaco, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, 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       Wen Zheng, a native and citizen of China, seeks review

 6   of an October 26, 2012, decision of the BIA affirming the

 7   February 7, 2011, decision of Immigration Judge (“IJ”) Alan

 8   Vomacka, which denied his application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).     In re Wen Zheng, No. A094 793 289

11   (B.I.A. Oct. 26, 2012), aff’g No. A094 793 289 (Immig. Ct.

12   N.Y. City Feb. 7, 2011).    We assume the parties’ familiarity

13   with the underlying facts and procedural history in this

14   case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”     See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

18   Cir. 2008).    The applicable standards of review are well-

19   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

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

21       We conclude that the adverse credibility determination

22   is supported by substantial evidence.    For applications such

23   as Zheng’s, governed by the REAL ID Act of 2005, the agency

                                     2
 1   may, “[c]onsidering the totality of the circumstances,” base

 2   a credibility finding on the plausibility of an applicant’s

 3   account and inconsistencies in his statements, without

 4   regard to whether they go “to the heart of the applicant’s

 5   claim.”   8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see

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

 7   (per curiam).   We “defer [ ] to an IJ’s credibility

 8   determination unless, from the totality of the

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

10   could make such an adverse credibility ruling.”   Xiu Xia

11   Lin, 534 F.3d at 167.

12       The agency reasonably based its adverse credibility

13   determination on the inconsistency between Zheng’s written

14   statement and testimony regarding when he began practicing

15   Falun Gong in the United States, as the inconsistency called

16   into question the truthfulness of his asylum application.

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

18   167 (noting that, post-REAL ID Act, “an IJ may rely on any

19   inconsistency or omission in making an adverse credibility

20   determination as long as the ‘totality of the circumstances’

21   establishes that an asylum applicant is not credible”

22   (emphasis in original)); Xian Tuan Ye v. DHS, 446 F.3d 289,


                                   3
 1   295-96 (2d Cir. 2006) (per curiam) (holding that a material

 2   inconsistency regarding the alleged persecution at the basis

 3   of the claim constitutes substantial evidence).    Moreover,

 4   the agency reasonably declined to credit Zheng’s explanation

 5   for the inconsistency given the explicit statements in his

 6   application that he both practiced and supported Falun Gong.

 7   See Matter of D-R-, 25 I&N Dec. 445, 455 (BIA 2011); Majidi

 8   v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

 9       The agency also reasonably relied on the implausibility

10   of Zheng’s claim that he was unaware of the risks associated

11   with posting Falun Gong content on the Internet, given his

12   testimony that his business was managing the website and he

13   posted the information on a hidden page of the website to

14   avoid discovery.    See Wensheng Yan v. Mukasey, 509 F.3d 63,

15   66 (2d Cir. 2007); Siewe v. Gonzales, 480 F.3d 160, 168-69

16   (2d Cir. 2007).    Given Zheng’s questionable testimony, the

17   agency reasonably relied on his failure to provide adequate

18   corroborating evidence in support of his claims.    See Biao

19   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).     The

20   agency was not required to credit letters from Zheng’s

21   father and friend, as they were not subject to cross-

22   examination.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471


                                    4
 1   F.3d 315, 342 (2d Cir. 2006) (explaining that the weight

 2   afforded to the applicant’s evidence lies largely within the

 3   discretion of the agency); In re H-L-H- & Z-Y-Z-, 25 I. & N.

 4   Dec. 209, 215 (BIA 2010) (finding that unsworn letters from

 5   the alien’s friends and family were insufficient to provide

 6   substantial support for the alien’s claims because they were

 7   interested witnesses not subject to cross-examination

 8   (citations omitted)), overruled on other grounds by Hui Lin

 9   Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012).

10       Given the inconsistencies and implausibility and

11   corroboration findings, the totality of the circumstances

12   supports the agency’s adverse credibility determination.

13   See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia

14   Lin, 534 F.3d at 167.   Because the only evidence of a threat

15   to Zheng’s life or freedom depended upon his credibility,

16   the adverse credibility determination necessarily precludes

17   a grant of asylum, withholding of removal, or CAT relief.

18   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

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

23   this petition is DENIED as moot.   Any pending request for
                                   5
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

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




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