09-3571-ag
Zheng v. Holder
                                                                                BIA
                                                                         Bukszpan, IJ
                                                                        A098 384 320
                       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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 18 th day of August, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge.
         JON O. NEWMAN,
         DENNY CHIN,
             Circuit Judges.
_______________________________________

GUO QIN ZHENG,
         Petitioner,

                  v.                                               09-3571-ag
                                                                          NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                 Jeffrey E. Baron, New York, New York.

FOR RESPONDENT:                 Tony West, Assistant Attorney General,
                                Stephen J. Flynn, Assistant Director,
                                Karen Y. Stewart, Attorney, Office of
                                Immigration Litigation, Civil Divi-
                                sion, United States Department of
                                Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Petitioner Guo Qin Zheng, a native and citizen of the

People’s Republic of China, seeks review of a July 23, 2009,

order of the BIA, affirming the October 26, 2006, decision of

Immigration Judge (“IJ”) Joanna Miller Bukszpan, denying his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).          In re Guo Qin

Zheng, No. A098 384 320 (B.I.A. July 23, 2009), aff’g No. A098

384 320(Immig. Ct. N.Y. City Oct. 26, 2006).          We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

    Under   the   circumstances   of   this   case,   we   review   the

decision of the IJ as supplemented by the BIA.             See Yun-Zui

Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).                 The

applicable standards of review are well-established.                See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).

    Substantial     evidence      supports    the     IJ’s     adverse




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credibility      determination. 1      The   IJ   reasonably      relied   on

Zheng’s demeanor, which she found to be “highly evasive and

nonresponsive.”       As the BIA noted, Zheng was evasive and non-

responsive to the IJ’s questions concerning how long he was

beaten, whether any events transpired between his June arrest

and his departure from China, why his mother was arrested, and

whether he obtained a statement from the person who introduced

him to Falun Gong.         We afford particular deference to such

assessments      of   an   applicant’s     demeanor.        See   Majidi   v.

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

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

(holding that “[w]e can be [] more confident in our review of

observations about an applicant’s demeanor where . . . they

are       supported   by    specific       examples    of     inconsistent

testimony”).      Moreover, based on the BIA’s citations to non-

reponsive testimony, which are supported by the record, we

cannot find that we are compelled to overturn the demeanor

finding.

      Furthermore, the IJ reasonably found several aspects of

Zheng’s testimony implausible.            The IJ based this finding, in

part, on the lack of corroborating evidence in the record to


      Because Zheng filed his asylum application before May 11,
      1

2005, the amendments made to the Immigration and Nationality Act
by the REAL ID Act of 2005 do not apply. See Pub. L. No. 109-13,
§ 101(h)(2), 119 Stat. 231, 305 (2005).

                                    -3-
support    Zheng’s      assertion    that    he    began    to    practice,        and

continues to practice, Falun Gong because of his ill health.

The IJ’s finding in this respect was proper, as an applicant’s

failure to corroborate his testimony may bear on credibility.

See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341

(2d Cir. 2006).         Although Zheng offered an explanation to the

IJ as to why his testimony was not implausible, the IJ was not

required    to    credit      it.    See    Majidi,      430    F.3d    at    80-81.

Moreover, such explanations–even if rational–“do not defeat a

finding that the account is implausible.”                        See Ying Li v.

BCIS, 529 F.3d 79, 83 (2d Cir. 2008).

       Lastly,    the   IJ    reasonably    relied     on      discrepancies        in

Zheng’s testimony to find him not credible.                         The IJ found

that: (1) although Zheng testified that he practiced Falun

Gong once a week, his witness asserted that he practiced it

every day; and (2) although Zheng testified that his mother

was arrested with him and later helped orchestrate his release

from   detention,       his   mother’s     letter     omitted       these     facts.

Although minor and isolated discrepancies may be insufficient

to support an adverse credibility finding, see Diallo v. INS,

232 F.3d 279, 288 (2d Cir. 2000), the multiple discrepancies

here    were     not    isolated,    and    even    if      minor      in    and    of

themselves,       relate      to    the    basis    of      Zheng’s         fear    of


                                      -4-
persecution.     Thus, the IJ reasonably relied on the cumulative

effect of Zheng’s inconsistent testimony to call into question

his credibility.       See Tu Lin v. Gonzales, 446 F.3d 395, 402

(2d Cir. 2006); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162,

166-67 & n.3 (2d Cir. 2008) (noting that inconsistencies and

omissions are “functionally equivalent”).

       Accordingly, substantial evidence supports the agency’s

adverse credibility determination.            See Zhou Yun Zhang v. U.S.

INS,   386    F.3d   66,   74   (2d   Cir.   2004).   Because   the   only

evidence of a threat to Zheng’s life or freedom depended upon

his credibility, the adverse credibility determination in this

case necessarily precludes success on his claims for asylum

and withholding of removal.            See Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006).

       For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

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

this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe, Clerk




                                      -5-
