     14-1886
     Zheng v. Lynch
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A089 097 441
                           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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   25th day of November, two thousand fifteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   LINGBIN ZHENG, AKA BING LIN,
14            Petitioner,
15
16                    v.                                             14-1886
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       Lee Ratner, Law Offices of Michael
25                                         Brown, New York, New York.
26
27   FOR RESPONDENT:                       Joyce R. Branda, Acting Assistant
28                                         Attorney General; John S. Hogan,
1                                       Assistant Director; David H.
2                                       Wetmore, Trial Attorney, Office of
3                                       Immigration Litigation, United
4                                       States Department of Justice,
5                                       Washington D.C.
6
7          UPON DUE CONSIDERATION of this petition for review of a

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

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   DENIED.

11         LingBin Zheng, a native and citizen of China, seeks review

12   of a May 16, 2014 decision of the BIA affirming the November

13   28, 2011 decision of an Immigration Judge (“IJ”), which denied

14   his application for asylum, withholding of removal, and relief

15   pursuant to the Convention Against Torture (“CAT”).                    In re

16   LingBin Zheng, No. A089 097 441 (B.I.A. May 16, 2014), aff’g

17   No. A089 097 441 (Immig. Ct. N.Y. City Nov. 28, 2011).              We assume

18   the   parties’    familiarity      with    the    underlying    facts      and

19   procedural history in this case.

20         Under the circumstances of this case, we have reviewed both

21   the   decisions   of   the   IJ    and    the    BIA   “for   the   sake   of

22   completeness.”     Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

23   524, 528 (2d Cir. 2006).          The applicable standards of review


                                          2
1    are well established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin

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

3          For asylum applications like Zheng’s, governed by the REAL

4    ID Act of 2005, the agency may, “[c]onsidering the totality of

5    the   circumstances,”   base   a   credibility       determination    on

6    inconsistencies in an asylum applicant’s statements and other

7    record    evidence,     “without       regard   to     whether”      the

8    inconsistencies go “to the heart of the applicant’s claim.”            8

9    U.S.C. § 1158(b)(1)(B)(iii).           “We defer . . . to an IJ’s

10   credibility determination unless, from the totality of the

11   circumstances, it is plain that no reasonable fact-finder could

12   make such an adverse credibility ruling.”             Xiu Xia Lin v.

13   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

14   Substantial evidence supports the agency’s adverse credibility

15   determination.

16         The agency reasonably considered an inconsistency between

17   Zheng’s testimony and asylum application concerning when he was

18   arrested.    Zheng’s asylum application asserted that he was

19   arrested in December 2007 for distributing Falun Gong leaflets,

20   but he testified that the arrest took place in July 2007.            The

21   agency was not compelled to credit his explanation that he was
                                        3
1    nervous, especially because he confirmed on direct examination

2    that he was “sure” that he was arrested in July 2007.          See Majidi

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

4    the agency need not credit an applicant’s explanations for

5    inconsistent testimony unless those explanations would compel

6    a reasonable fact-finder to do so).

7          The agency also reasonably relied on an inconsistency

8    regarding Zheng’s location when authorities confronted his

9    family about their failure to cooperate with the confiscation

10   of their land.      He repeatedly testified that he was not inside

11   his   home   when    the   authorities   entered;    that      testimony

12   conflicted   with    his   asylum   application    and   his    father’s

13   affidavit, both of which stated that he was having breakfast

14   inside his home when authorities entered.     Confronted with this

15   inconsistency, Zheng conceded that he may have been eating

16   breakfast with his father after all.              But, given Zheng’s

17   repeated assertions otherwise, the agency was not compelled to

18   ignore the inconsistency.      See Majidi, 430 F.3d at 80-81.        The

19   agency reasonably relied further on          Zheng’s inconsistent

20   statements regarding whether he was aware of the intended use

21   of his family’s confiscated land.
                                         4
1        Given these inconsistency findings, the totality of the

2    circumstances    supports   the   agency’s   adverse   credibility

3    determination.    See Xiu Xia Lin, 534 F.3d at 167; see also Tu

4    Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (emphasizing

5    that “even where an IJ relies on discrepancies or lacunae that,

6    if taken separately, concern matters collateral or ancillary

7    to the claim, . . . the cumulative effect may nevertheless be

8    deemed consequential by the fact-finder”).     That determination

9    is dispositive of asylum, withholding of removal, and CAT

10   relief, as those claims are based on the same factual predicate.

11   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

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

14   that the Court previously granted in this petition is VACATED,

15   and any pending motion for a stay of removal in this petition

16   is DISMISSED as moot.    Any pending request for oral argument

17   in this petition is DENIED in accordance with Federal Rule of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22
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