         10-476-ag
         Zheng v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A098 633 117
                            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 24th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                       Circuit Judges.
11       _______________________________________
12
13       SHUANG LONG ZHENG,
14                Petitioner,
15
16                         v.                                   10-476-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Thomas V. Massucci, New York, NY
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Richard M. Evans, Assistant
27                                     Director; Kevin J. Conway, Attorney,
28                                     Office of Immigration Litigation,
29                                     U.S. Department of Justice,
30                                     Washington D.C.
 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       Shuang Long Zheng, a native and citizen of the People’s

 6   Republic of China, seeks review of the January 13, 2010,

 7   order of the BIA affirming the March 13, 2008, decision of

 8   Immigration Judge (“IJ”) Thomas J. Mulligan denying his

 9   application for asylum, withholding of removal, and relief

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

11   No. A098 633 117 (B.I.A. Jan. 13, 2010), aff’g No. A098 633

12   117 (Immig. Ct. N.Y. City March 13, 2008).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we review the

16   BIA’s and IJ’s opinions, including portions of the IJ’s

17   decision not explicitly discussed by the BIA.   See Yun-Zui

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

19   applicable standards of review are well-established.    See

20   8 U.S.C. § 1252(b)(4)(B) (2005); Xiu Xia Lin v. Mukasey,

21   534 F.3d 162, 167 (2d Cir. 2008); Corovic v. Mukasey, 519

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



                                   2
 1       Substantial evidence supports the agency’s adverse

 2   credibility determination.   For asylum applications governed

 3   by the REAL ID Act of 2005, the agency may, considering the

 4   totality of the circumstances, base a credibility finding on

 5   an asylum applicant’s demeanor, the plausibility of his or

 6   her account, and inconsistencies in his or her statements,

 7   without regard to whether they go “to the heart of the

 8   applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii) (2009).

 9       The agency reasonably relied on inconsistencies between

10   Zheng’s testimony and a letter from Zheng’s father, as his

11   father mentioned that only he and his mother were present at

12   the time Zheng was arrested, but Zheng initially testified

13   that only his sister was present at his arrest.   Also, the

14   letter did not mention that Zheng was served with a summons

15   by police officers after he left the country, but Zheng

16   submitted a summons as evidence and testified that his

17   father had received and mailed him the summons.   See

18   8 U.S.C. § 1158(b)(1)(B)(iii) (providing that an adverse

19   credibility determination may be based on “the consistency

20   between the applicant’s or witness’s written and oral

21   statements . . ., the internal consistency of each such

22   statement, the consistency of such statements with other

23   evidence of record . . ., and any inaccuracies or falsehoods

                                   3
 1   in such statements . . . .”); Majidi v. Gonzales, 430 F.3d

 2   77, 80-81 (2d Cir. 2005) (finding that the agency need not

 3   credit an applicant’s explanations for inconsistent

 4   testimony unless those explanations would compel a

 5   reasonable fact-finder to do so).

 6       In addition, contrary to Zheng’s position, the agency’s

 7   implausibility finding was tethered to record evidence, as

 8   Zheng testified that he practiced Falun Gong only privately

 9   at home or in his dormitory at school, that only his father

10   ever saw him practice, and that his father never told

11   anyone, but did not offer any explanation when asked how the

12   authorities might have become aware that he practiced Falun

13   Gong.   See Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007)

14   (upholding an IJ’s finding that petitioner’s story was

15   inherently implausible when that finding was “tethered to

16   record evidence, and there [was] nothing else in the record

17   from which a firm conviction of error could properly be

18   derived”).   The agency also reasonably relied on Zheng’s

19   demeanor in supporting its adverse credibility

20   determination, as the IJ noted that Zheng often looked to

21   the IJ’s reactions to his answers, that questions sometimes

22   had to be asked multiple times, that answers often had to be

23   forced out of him, and that his answers were not always

                                   4
 1   responsive to the questions posed, and cited specific

 2   examples of Zheng’s demeanor during inconsistent testimony.

 3   See Li Zu Guan v. I.N.S., 453 F.3d 129, 140 (2d Cir. 2006)

 4   (stating that demeanor is “paradigmatically the sort of

 5   evidence that a fact-finder is best positioned to

 6   evaluate”); Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d

 7   99, 109 (2d Cir. 2006) (noting that the Court “can be . . .

 8   more confident in [its] review of observations about an

 9   applicant's demeanor where . . . they are supported by

10   specific examples of inconsistent testimony”).

11       Finally, we need not reach the issue of the agency’s

12   reliance on a false statement that Zheng made to an

13   immigration officer in order to secure entry into the United

14   States because the agency articulated alternate and

15   sufficient bases, discussed above, for its adverse

16   credibility determination.   See Lin, 453 F.3d at 107-11

17   (holding that remand is not required where we can

18   confidently predict that “the agency would reach the same

19   result” absent the alleged error).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition

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

                                   5
1   this petition is DISMISSED as moot.    Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk
7
8




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