         09-4957-ag
         Zheng v. Holder
                                                                                       BIA
                                                                                    Page, IJ
                                                                               A072 468 331
                                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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 7th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                DENNY CHIN,
11                    Circuit Judges.
12       _______________________________________
13
14       DAN-LEUNG ZHENG,
15                Petitioner,
16
17                         v.                                   09-4957-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Waisim M. Cheung, Tsoi and
25                                       Associates, New York, New York.
26
27       FOR RESPONDENT:                 Tony West, Assistant Attorney
28                                       General; Richard M. Evans, Assistant
29                                       Director; Aliza B. Alyeshmerni,
30                                       Trial Attorney, Office of
 1                             Immigration Litigation, Civil
 2                             Division, United States Department
 3                             of Justice, Washington, D.C.

 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Petitioner Dan-Leung Zheng, a native and citizen of the

 6   People’s Republic of China, seeks review of a November 4,

 7   2009, decision of the BIA, denying his motion to remand and

 8   affirming the January 31, 2008, decision of Immigration

 9   Judge (“IJ”) Alan Page, denying his application for asylum,

10   withholding of removal, and relief under the Convention

11   Against Torture (“CAT”).     In re Dan-Leung Zheng, No. A072

12   468 331 (B.I.A. Nov. 4, 2009), aff’g No. A072 468 331

13   (Immig. Ct. N.Y.C. Jan. 31, 2008).     We assume the parties’

14   familiarity with the underlying facts and procedural history

15   of the case.

16       Under the circumstances of this case, we review both

17   the IJ’s and the BIA’s decisions for the sake of

18   completeness.     See Wangchuck v. DHS, 448 F.3d 524, 528 (2d

19   Cir. 2006).     The applicable standards of review are well-

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


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

 2   I.     Application for Relief

 3          A.       Asylum

 4                   1.   Past Persecution

 5          Substantial evidence supports the IJ’s adverse

 6   credibility determination with regard to Zheng’s claim that

 7   he suffered past persecution on account of his “other

 8   resistance” to China’s family planning policy.1       As the IJ

 9   found, Zheng testified in his asylum interview that:

10   (1) when family planning officials came to his home to force

11   his wife to have an abortion, he fled out the back door and

12   hid with a friend; (2) five or six family planning officials

13   came to his home to apprehend his wife; and (3) he learned

14   of the forced abortion from a friend two days after it

15   occurred.        However, contrary to that testimony, Zheng

16   testified at his merits hearings that: (1) in an attempt to

17   block the officials from entering his home, he was “pushed

18   aside” as he witnessed two officials “drag” his wife away,

19   and he remained at his home until his wife returned the



                Because Zheng filed his asylum application before
                 1

          May 11, 2005, the amendments made to the Immigration and
          Nationality Act by the REAL ID Act of 2005 do not apply
          to his asylum application. See Pub. L. No. 109-13,
          § 101(h)(2), 119 Stat. 231, 305 (2005).
                                         3
 1   following day; (2) only three family planning officials came

 2   to his home; and (3) he learned of the forced abortion when

 3   his wife returned from the hospital the following day, which

 4   led him to confront family planning officials at their

 5   office.   Although minor and isolated discrepancies may be

 6   insufficient to support an adverse credibility finding, see

 7   Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000), the

 8   discrepancies here relate to events at the heart of Zheng’s

 9   claim—that he had suffered past persecution based on his

10   “other resistance” to his wife’s forced abortion.    Thus, the

11   IJ reasonably relied on the cumulative effect of these

12   inconsistencies to call into question Zheng’s credibility.

13   See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)

14   (emphasizing that “even where an IJ relies on discrepancies

15   or lacunae that, if taken separately, concern matters

16   collateral or ancillary to the claim, the cumulative effect

17   may nevertheless be deemed consequential by the fact-

18   finder”). (internal quotation marks and citations omitted)

19       Since the record supports the IJ’s findings of

20   conflicting testimony, the IJ was not required to credit

21   Zheng’s explanation that he omitted details of the

22   altercation because he thought the incident was


                                   4
 1   insignificant and because the interpreter at the hearing had

 2   “cut off” his answers.   See Majidi v. Gonzales, 430 F.3d 77,

 3   80-81 (2d Cir. 2005) (holding that the agency need not

 4   credit an applicant’s explanations for inconsistent

 5   testimony unless those explanations would compel a

 6   reasonable fact-finder to do so).   Moreover, the proffered

 7   explanation fails to account for inconsistencies about his

 8   initial reaction to the officials, the number of officials

 9   who came to his home, and how he learned of the forced

10   abortion.

11       In finding Zheng not credible, the IJ also reasonably

12   relied on Zheng’s failure to provide credible, corroborating

13   evidence in support of his claim that he had suffered past

14   persecution.   See Biao Yang v. Gonzales, 496 F.3d 268, 273

15   (2d Cir. 2007) (holding that an applicant’s failure to

16   corroborate his testimony may bear on credibility, either

17   because the absence of particular corroborating evidence is

18   viewed as suspicious, or because the absence of

19   corroboration in general makes an applicant unable to

20   rehabilitate testimony that has already been called into

21   question).

22       Because the IJ’s adverse credibility determination was


                                   5
 1   reasonable and is dispositive of his claim of past

 2   persecution, we do not reach Zheng’s challenges to the

 3   agency’s findings that he failed to meet his burden of

 4   proof.

 5            2.   Well-Founded Fear of Future Persecution

 6       Because Zheng failed to demonstrate that he had

 7   suffered past persecution, he was not entitled to a

 8   presumption of a well-founded fear of future persecution.

 9   See 8 C.F.R. § 1208.13(b).     Absent past persecution, an

10   applicant can demonstrate eligibility for asylum based on a

11   well-founded fear of future persecution by demonstrating

12   that he subjectively fears persecution and that this fear is

13   objectively reasonable.    Ramsameachire v. Ashcroft, 357 F.3d

14   169, 178 (2d Cir. 2004).

15                 i.   Family Planning Policy

16       The agency reasonably found that Zheng failed to

17   demonstrate a well-founded fear of persecution because the

18   evidence he submitted did not indicate that forcible

19   sterilizations are mandated in Fujian Province after the

20   birth of a second child.     As the BIA observed, the evidence

21   Zheng submitted was similar to that which it addressed in

22   Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007).     We have


                                     6
 1   previously reviewed, and found no error in, the BIA’s

 2   analysis in that case.     Jian Hui Shao v. Mukasey, 546 F.3d

 3   138 (2d Cir. 2008).

 4       Furthermore, contrary to Zheng’s assertions, the agency

 5   sufficiently considered all of the evidence he submitted,

 6   and adequately explained its findings.     See Wei Guang Wang

 7   v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (holding that the

 8   agency is not required to “expressly parse or refute on the

 9   record each individual argument or piece of evidence offered

10   by the petitioner” as long as it “has given reasoned

11   consideration to the petition, and made adequate findings”).

12   (internal quotation marks omitted)    The IJ also reasonably

13   gave minimal weight to the letter and sterilization

14   certificates Zheng submitted from a fellow Changle villager

15   and from a relative.     See Xiao Ji Chen v. U.S. Dep’t of

16   Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding that the

17   weight afforded to the applicant’s evidence in immigration

18   proceedings lies largely within the discretion of the

19   agency).

20                ii. Religion

21       The agency also reasonably found that Zheng failed to

22   demonstrate an objectively reasonable well-founded fear of


                                     7
 1   persecution based on his Christian religion.   Contrary to

 2   Zheng’s assertion, the agency did not erroneously apply a

 3   higher standard of proof by requiring him to demonstrate

 4   both an individualized fear of persecution and a pattern or

 5   practice of persecution.   See 8 C.F.R. §§ 208.13(b)(2),

 6   208.16(b)(2); Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir.

 7   2007) (holding that an applicant shall not be required to

 8   demonstrate that he would be singled out for persecution if

 9   he demonstrates a pattern or practice of persecution of a

10   group on account of a protected ground and his own inclusion

11   in or identification with that group).   Rather, the IJ found

12   that Zheng failed to demonstrate either that he would be

13   individually singled out for persecution or that there was a

14   pattern or practice of persecution.

15       The IJ reasonably found that Zheng failed to establish

16   a pattern or practice of persecution of Christians similarly

17   situated to him.   See Mufied, 508 F.3d at 91; see also

18   Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (holding

19   that the agency’s finding of no pattern or practice is sound

20   where it is sufficiently supported by the background

21   materials).   As the IJ found, the State Department’s 2007

22   Profile report, (unlike the 2004 Profile report) did not


                                   8
 1   indicate that any suppression of house churches in Fujian

 2   amounted to persecution.     Recent State Department and news

 3   reports indicate that, because Fujian is rural and located

 4   in the south, unlike Beijing or Shanghai, it was unlikely

 5   that the Chinese government would target Zheng’s church for

 6   suppression.   That substantial evidence supports the IJ’s

 7   finding that there was no pattern or practice of

 8   persecution, and that finding supports the conclusion that

 9   Zheng failed to qualify for withholding of removal.     Diallo,

10   232 F.3d at 287 (holding that this Court will “reverse [the

11   BIA] only if no reasonable fact-finder could have failed to

12   find the past persecution or fear of future persecution

13   necessary to sustain the petitioner’s burden”).

14       Accordingly, because the agency’s determination that

15   Zheng failed to show past persecution or a well-founded fear

16   of future persecution is supported by substantial evidence,

17   there is no merit to his challenge to the denial of asylum.

18   8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

19   F.3d 90, 95 (2d Cir. 2008)

20       B.   Withholding of Removal and CAT Relief

21       To the extent that Zheng asserts that he established

22   his eligibility for asylum, withholding of removal, and CAT


                                     9
 1   relief based on his “other resistance,” the IJ’s reasonable

 2   adverse credibility determination defeats all three claims

 3   because they were based on the same factual predicate.      Paul

 4   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).      Similarly,

 5   because Zheng was unable to establish the objective

 6   likelihood of persecution needed to make out an asylum claim

 7   based on the birth of his two children or his Christian

 8   beliefs, he was necessarily unable to satisfy the higher

 9   standard required to succeed on his claims for withholding

10   of removal and CAT relief, as all three claims rested on the

11   same factual predicate.    Id.2    Zheng has waived any

12   challenge to the IJ’s denial of CAT relief based on his

13   illegal departure from China, general prison conditions, or

14   his Christian religion.

15   II.         Motion to Remand

16         We review the BIA’s denial of a motion to remand for

17   abuse of discretion.    Li Yong Cao v. U.S. Dep’t of Justice,



             2
             Zheng argues that the IJ failed to apply
       Ramsameachire to his decision denying CAT relief.
       However, the IJ discussed Ramsameachire in his decision
       and found, apart from his adverse credibility
       determination, found that Zheng failed to meet his burden
       of demonstrating a likelihood of torture based on the
       birth of his two children. See Ramsameachire, 357 F.3d
       at 184-85.
                                       10
 1   421 F.3d 149, 157 (2d Cir. 2005).     An abuse of discretion

 2   may be found where the BIA’s decision “provides no rational

 3   explanation, inexplicably departs from established policies,

 4   is devoid of any reasoning, or contains only summary or

 5   conclusory statements; that is to say, where the Board has

 6   acted in an arbitrary or capricious manner.” Id.

 7       The BIA did not abuse its discretion in denying Zheng’s

 8   motion to remand based on his pending I-130 visa petition.

 9   As Zheng conceded in his motion to remand, the United States

10   Citizenship and Immigration Services has sole jurisdiction

11   to adjudicate his adjustment of status application.      See

12   8 C.F.R. § 245.2 (2006).   Because the IJ could not have

13   taken any action to adjudicate Zheng’s adjustment of status

14   application, the BIA’s denial of the motion was not

15   arbitrary or capricious.

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition

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

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

21

22



                                   11
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
6
7
8




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