     16-3506
     Zhantiao Cheng v. Sessions
                                                                                   BIA
                                                                            Schoppert, IJ
                                                                           A205 614 660
                             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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 11th day of June, two thousand eighteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            GUIDO CALABRESI,
 9            JOSÉ A. CABRANES,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHANTIAO CHENG,
14                 Petitioner,
15
16                     v.                                        16-3506
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20                 Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Gary J. Yerman, New York, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; Russell J.E.
27                                      Verby, Senior Litigation Counsel;
28                                      Kristin Moresi, Trial Attorney,
29                                      Office of Immigration Litigation,
30                                      United States Department of
31                                      Justice, Washington, DC.
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          Petitioner Zhantiao Cheng, a native and citizen of the

6    People’s Republic of China, seeks review of a September 30,

7    2016, decision of the BIA affirming a July 27, 2015, decision

8    of    an   Immigration   Judge   (“IJ”)    denying   Zhantiao   Cheng’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).          In re Zhantiao

11   Cheng, No. A 205 614 660 (B.I.A. Sept. 30, 2016), aff’g No. A

12   205 614 660 (Immig. Ct. N.Y. City July 27, 2015).            We assume

13   the    parties’   familiarity    with     the   underlying   facts   and

14   procedural history in this case.

15         Under the circumstances of this case, we have reviewed

16   only the IJ’s eligibility determination explicitly affirmed

17   by the BIA, not the IJ’s alternative discretionary denial of

18   asylum.     See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

19   520, 522 (2d Cir. 2005).         The standards of review are well

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

21   Holder, 741 F.3d 324, 332-33 (2d Cir. 2013).
                                   2
1         Zhantiao Cheng alleged that he had a well-founded fear

2    of future persecution based on his participation in the China

3    Democracy Party (“CDP”) in the United States.                 He had the

4    burden to show that the claim was subjectively credible and

5    that the fear was objectively reasonable.              Ramsameachire v.

6    Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).               An applicant

7    whose claim is based solely on events or activities in the

8    United States must show that the Chinese government is “aware

9    of   his   activities    or   likely    to    become    aware    of    his

10   activities.”    Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

11   (2d Cir. 2008).      These types of claims of future persecution

12   require    careful    analysis    because      they     are    “easy    to

13   manufacture.”     Y.C., 741 F.3d at 338.        Ultimately, Zhantiao

14   Cheng was required to show that he was credible and that the

15   Chinese government was aware or likely to become aware of his

16   activities.     We find no error in the agency’s conclusions

17   that Zhantiao Cheng failed in both respects.

18        First, the agency reasonably concluded that Zhantiao

19   Cheng’s    credibility     was   undermined      by     omissions      and

20   inconsistencies.     The agency may, “[c]onsidering the totality

21   of   the    circumstances,”      base    an    adverse        credibility
                                       3
1    determination        on    inconsistencies       or   omissions     in     an

2    applicant’s oral and written statements and other record

3    evidence, regardless of whether any such discrepancies “go[]

4    to   the    heart    of    the    applicant’s    claim.”     8    U.S.C.   §

5    1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

6    163-64, 166-67 (2d Cir. 2008).             “We defer . . . to an IJ’s

7    credibility determination unless . . . it is plain that no

8    reasonable fact-finder could make such an adverse credibility

9    ruling.”     Xiu Xia Lin, 534 F.3d at 167.

10        The agency reasonably relied on Zhantiao Cheng’s omission

11   of   his    arrest    on    his    original     asylum   application     and

12   inconsistencies in his testimony about his arrest and guilty

13   plea.      See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

14   F.3d at 166-67 & n.3 (holding that “[a]n inconsistency and an

15   omission are . . . functionally equivalent” for credibility

16   purposes). Zhantiao Cheng’s omission of his arrest from his

17   asylum application cast doubt on his credibility and his lack

18   of straightforward answers about the charge and plea further

19   undermined his credibility.           See Siewe v. Gonzales, 480 F.3d

20   160, 170 (2d Cir. 2007) (“[A] single false document or a

21   single instance of false testimony may (if attributable to
                                            4
1    the     petitioner)       infect     the     balance     of       the     alien’s

2    uncorroborated or unauthenticated evidence.”).

3          The IJ was not required to accept Zhantiao Cheng’s

4    explanation      that     he   was    nervous     when       he     signed    his

5    application.      See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

6    Cir. 2005) (“A petitioner must do more than offer a plausible

7    explanation for his inconsistent statements to secure relief;

8    he must demonstrate that a reasonable fact-finder would be

9    compelled to credit his testimony.” (quotation marks and

10   citation omitted)).         Although Zhantiao Cheng argues that he

11   did     not    understand      the    term     “arrest”       and       testified

12   consistently, the record supports the IJ’s conclusions given

13   Zhantiao      Cheng’s    seeming     understanding     that       he    had   been

14   charged with a crime.           See Siewe, 480 F.3d at 167 (“Where

15   there    are    two     permissible    views    of     the    evidence,       the

16   factfinder’s choice between them cannot be clearly erroneous.

17   . . . Rather, a reviewing court must defer to that choice so

18   long as the deductions are not illogical or implausible.”

19   (citations and quotation marks omitted)).

20         Second, Zhantiao Cheng did not otherwise meet his burden

21   of establishing that Chinese authorities were aware or likely
                                            5
1    to become aware of his political activities.       See Hongsheng

2    Leng, 528 F.3d at 143.        The IJ declined to credit a letter

3    from Zhantiao Cheng’s mother stating that Chinese police were

4    searching for him.    Zhantiao Cheng has waived any challenge

5    to this determination.        See Yueqing Zhang v. Gonzales, 426

6    F.3d 540, 545 n.7 (2d Cir. 2005) (providing that issues not

7    raised in an opening brief are waived).     Moreover, the IJ did

8    not err in giving the letter little weight, see Y.C., 741

9    F.3d at 334 (deferring to IJ’s decision not to credit letter

10   from spouse in China).    Further, Zhantiao Cheng’s claim that

11   articles he published online about the CDP would be discovered

12   by Chinese authorities, absent more concrete evidence, is

13   “pure speculation.”     Id.     Zhantiao Cheng’s failure to meet

14   his burden for asylum also precludes him from meeting the

15   higher standards for withholding of removal and CAT relief.

16   Id. at 335.

17       For the foregoing reasons, the petition for review is

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

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

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

21   is DISMISSED as moot.    Any pending request for oral argument
                                       6
1   in this petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

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




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