         12-934
         Zheng v. Holder
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A099 559 574
                             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 17th day of April, two thousand thirteen.
 5
 6       PRESENT:
 7                         DENNIS JACOBS,
 8                              Chief Judge,
 9                         DEBRA ANN LIVINGSTON,
10                         SUSAN L. CARNEY,
11                              Circuit Judges.
12
13       _____________________________________
14
15       HUODI ZHENG,
16                Petitioner,
17
18                         v.                                   12-934
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONER:                Fuhao Yang, New York, New York.
26
27       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
28                                      General; William C. Peachey,
29                                      Assistant Director; Lindsay Corliss,
 1                             Trial Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Petitioner Huodi Zheng, a native and citizen of China,

11   seeks review of a February 8, 2012, order of the BIA,

12   affirming an October 6, 2009, decision of Immigration Judge

13   (“IJ”) Philip L. Morace, denying his application for asylum,

14   withholding of removal, and relief under the Convention

15   Against Torture (“CAT”).     In re Huodi Zheng, No. A099 559

16   574 (B.I.A. Feb. 8, 2012), aff’g No. A099 559 574 (Immig.

17   Ct. N.Y. City Oct. 6, 2009).     We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20       Under the circumstances of this case, we have

21   considered both the IJ’s and the BIA’s opinions “for the

22   sake of completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237

23   (2d Cir. 2008).     The applicable standards of review are

24   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

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

                                     2
 1   applications like this one, governed by the REAL ID Act of

 2   2005, the agency may, considering the totality of the

 3   circumstances, base a credibility finding on an asylum

 4   applicant’s demeanor, the plausibility of his account, and

 5   inconsistencies in his statements, without regard to whether

 6   they go “to the heart of the applicant’s claim.”   8 U.S.C.

 7   § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,

 8   265 (B.I.A. 2007).   Analyzed under these standards, the

 9   agency’s adverse credibility determination is supported by

10   substantial evidence.

11       In finding Zheng not credible, the agency reasonably

12   relied on the omission of his detention and beating from his

13   original asylum application.   See 8 U.S.C.

14   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

15   166 (2d Cir. 2008) (providing that, for purposes of

16   analyzing a credibility determination, “[a]n inconsistency

17   and an omission are . . . functionally equivalent”).     Zheng

18   attempted to explain this omission by stating that his

19   attorney originally asked him only about his wife’s

20   persecution, that he was prompted to submit a supplemental

21   affidavit about his own experiences in 2007.   However, the

22   IJ was not required to credit this explanation, as it would


                                    3
 1   not necessarily be compelling to a reasonable fact-finder.

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

 3   (holding that an agency need not credit an applicant’s

 4   explanations for inconsistencies in the record unless those

 5   explanations would compel a reasonable fact-finder to do

 6   so).    As the IJ explained, it was not plausible that Zheng’s

 7   original asylum application would describe the events of the

 8   day his wife was forcibly taken to have an intrauterine

 9   device inserted, but fail to mention that on the same day

10   and as part of the same incident, he was arrested and beaten

11   by family planning officials.       See 8 U.S.C.

12   § 1158(b)(1)(B)(iii); Wensheng Yan v. Mukasey, 509 F.3d 63,

13   66-67 (2d Cir. 2007).    Moreover, Zheng’s asylum application

14   reflects that he had never been arrested or detained.

15          Furthermore, the agency did not err in affording little

16   evidentiary weight to a document that purported to be a

17   police report from China, on the grounds that it was

18   unauthenticated and was issued fourteen years after the

19   arrest described.    See Shunfu Li v. Mukasey, 529 F.3d 141,

20   149 (2d Cir. 2008); Biao Yang v. Gonzales, 496 F.3d 268, 273

21   (2d Cir. 2007) (per curiam).

22



                                     4
 1       In light of the agency’s properly supported adverse

 2   credibility finding, it did not err in denying Zheng’s

 3   applications for relief.   See Paul v. Gonzales, 444 F.3d

 4   148, 156 (2d Cir. 2006) (holding that the agency need not

 5   analyze separately a withholding of removal claim based on

 6   the same facts as an applicant’s asylum claim); Xue Hong

 7   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

 8   2006) (same, with respect to CAT).

 9       For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

12   is VACATED, and any pending motion for a stay of removal in

13   this petition is DISMISSED as moot.    Any pending request for

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20




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