         13-1993
         Zheng v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A097 484 986
                            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 22nd day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROSEMARY S. POOLER,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       JINYING ZHENG, AKA JIN YING ZHENG,
14                Petitioner,
15
16                         v.                                   13-1993
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Jan Potemkin, Law Office of Jan
24                                     Potemkin, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Erica B. Miles, Senior
28                                     Litigation Counsel; Jesse D. Lorenz,
29                                     Trial Attorney, Civil Division,
30                                     Office of Immigration Litigation,
31                                     United States Department of Justice,
32                                     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       Petitioner Jinying Zheng, a native and citizen of

 6   China, seeks review of an April 23, 2013, decision of the

 7   BIA affirming a July 27, 2011, decision of an Immigration

 8   Judge (“IJ”) denying Zheng’s application for asylum,

 9   withholding of removal and relief under the Convention

10   Against Torture (“CAT”).   In re Jinying Zheng, No. A097 484

11   986 (B.I.A. April 23, 2013), aff’g No. A097 484 986 (Immig.

12   Ct. N.Y. City July 27, 2011).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we review the

16   IJ’s decision as modified by the BIA.       See Xue Hong Yang v.

17   U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

18   The applicable standards of review are well established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

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

21       Zheng applied for asylum in 2003, and so the REAL ID

22   Act does not apply in this case.       REAL ID Act of 2005, Div.


                                     2
 1   B of Pub. L. No. 109-13, 119 Stat. 302, 303 (2005) (codified

 2   at 8 U.S.C. § 1158(b)(1)(B)(iii)); Matter of S-B-, 24 I. &

 3   N. Dec. 42, 45 (BIA 2006). A pre-REAL ID Act adverse

 4   credibility determination must be based on “specific,

 5   cogent” reasons that bear a “legitimate nexus” to the

 6   finding.     Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.

 7   2003), superseded by the REAL ID Act as recognized in Xiu

 8   Kia Lin v. Mukasey, 534 F3d 162, 163 (2d Cir. 2008).

 9   Although our review of an IJ’s denial of asylum and

10   withholding of removal on credibility grounds is “highly

11   deferential,” Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d

12   172, 174 (2d Cir. 2005), “an IJ’s credibility determination

13   will not satisfy the substantial evidence standard when it

14   is based entirely on flawed reasoning, bald speculation, or

15   conjecture," Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

16   315, 335 (2d Cir. 2006) (citing Secaida-Rosales, 331 F.3d at

17   307, 312).

18       Here, the adverse credibility determination is

19   supported by substantial evidence. An asylum applicant is

20   “not required to list every incident of persecution” in his

21   application.     Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.

22   2006).     But Zheng omitted a major one: interrogations and


                                     3
 1   beatings at the hands of family planning officials.       He

 2   described his detention in his asylum application, but said

 3   nothing about physical abuse.       At his first merits hearing,

 4   the government attorney asked a series of questions about

 5   Zheng’s detention: the room where he was held (including the

 6   color of the walls – white); the furniture (a bed); whether

 7   he was handcuffed (no); and whether he was fed (a “regular

 8   meal” of rice and a vegetable).       Again, Zheng said nothing

 9   about physical abuse.    It was only when Zheng appeared

10   before the IJ for a third time that he claimed to have been

11   interrogated and beaten for resisting China’s family

12   planning policy.    Zheng’s omission of the interrogations and

13   beatings bore a    “legitimate nexus” to his claim of

14   persecution based on those events.       Majidi v. Gonzales, 430

15   F.3d 77, 81 (2d Cir. 2005).     Indeed, they are one and the

16   same.

17       Zheng’s challenge to the adverse credibility

18   determination is as follows.     Pre-REAL ID case law precluded

19   an adverse credibility finding based on details “collateral

20   or ancillary” to a claim.     Secaida-Rosales, 331 F.3d at 308.

21   Prior to Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d

22   296 (2d Cir. 2007), Zheng was per se eligible for asylum

23   based on his wife’s forced abortion and sterilization.         The

                                     4
 1   interrogations and beatings were collateral and ancillary to

 2   that claim.     So, argues Zheng, the agency should have

 3   credited his explanation: that his attorney advised him not

 4   to describe these painful episodes.

 5       In Shi Liang Lin, we held that the BIA erred in

 6   interpreting the Immigration and Nationality Act (“INA”) to

 7   give per se asylum eligibility to the spouses of those who

 8   had been forcibly aborted or sterilized.     494 F.3d at

 9   309-10.   But persecution based on resistance to a coercive

10   population control program has been a basis for asylum

11   relief since the Illegal Immigration Reform and Immigrant

12   Responsibility Act (“IIRIRA”) was enacted in 1996.     8 U.S.C.

13   § 1101(a)(42)(B).     Our decision in Shi Liang Lin did not

14   alter that.     As a consequence, at his first merits hearing,

15   Zheng’s mistreatment by family planning cadres was not

16   “collateral or ancillary” to his claim, and the agency was

17   not compelled to credit Zheng’s (and his attorney’s)

18   explanation that those episodes were “secondary” concerns.

19       Zheng did not assert a well-founded fear of future

20   persecution under the family planning program.     8 C.F.R.

21   § 1208.13(b).     So, Zheng failed to meet his burden of proof

22   for asylum, and he necessarily failed to meet the higher

23   burden required to succeed on claims for withholding of

                                     5
 1   removal or CAT relief insofar as those claims were based on

 2   the same factual predicate.    See Paul v. Gonzales, 444 F.3d

 3   148, 156 (2d Cir. 2006).   We need not consider Zheng’s

 4   challenge to the agency’s alternative basis for denying

 5   relief on family planning grounds.

 6       Zheng does not challenge the agency’s denial of his

 7   illegal departure claim.

 8       For the foregoing reasons, the petition for review is

 9   DENIED.

10                                 FOR THE COURT:
11                                 Catherine O’Hagan Wolfe, Clerk
12
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