    07-3412-ag
    Zheng v. Holder
                                                                                   BIA
                                                                              Sichel, IJ
                                                                          A095 161 001
                       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.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 30 th day of July, two thousand ten.

    PRESENT:
             REENA RAGGI,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                   Circuit Judges.
    ______________________________________

    RONG ZHENG,
             Petitioner,

                      v.                                   07-3412-ag
                                                           NAC
    ERIC H. HOLDER, JR., *
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Michael Brown, New York, New York.




             *
          Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder, Jr., is
    automatically substituted for former Attorney General
    Alberto Gonzales as the respondent in this case.
FOR RESPONDENT:         Gregory G. Katsas, Assistant
                        Attorney General; Michelle Gorden
                        Latour, Assistant Director; Tracie
                        N. Jones, Trial Attorney, Office of
                        Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

    Rong Zheng, a native and citizen of the People’s

Republic of China, seeks review of a July 13, 2007, order of

the BIA affirming the August 23, 2005, decision of

Immigration Judge (“IJ”) Helen J. Sichel, denying his

application for asylum, withholding of removal, and relief

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

Zheng No. A095 161 001 (BIA July 13, 2007), aff’g No. A095

161 001 (Immig. Ct. N.Y. City Aug. 23, 2005).    We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we review the

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

Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

2005).   The applicable standards of review are well


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

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

I.   Zheng’s Falun Gong Claim

     Substantial evidence supports the agency’s

determination that Zheng did not credibly establish that he

suffered past persecution due to his Falun Gong practice.

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

2003).    The IJ reasonably found Zheng not credible based on:

(1) his inconsistent testimony regarding the date he was

allegedly arrested; (2) his admittedly false claim that he

was persecuted on account of his homosexuality; (3) his

inconsistent testimony about what information he provided in

his first asylum application; and (4) his lengthy delay in

raising his Falun Gong claim.       See Yun-Zui Guan v. Gonzales,

432 F.3d 391, 398 (2d Cir. 2005) (upholding adverse

credibility determination based “on the commonsense

observation that it is inconsistent for a petitioner to

respond to the same question about the nature of his asylum

claim with two entirely different responses”).       Although

petitioner offered explanations for these discrepancies, a

reasonable fact finder would not be compelled to credit

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

2005).

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      The agency also reasonably determined that Zheng failed

to establish a well-founded fear of future persecution due

to his practice of Falun Gong in the United States, as he

failed to present any evidence indicating that authorities

in China are aware or likely to become aware of his

practice.   See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

(2d Cir. 2008) (“[T]o establish a well-founded fear of

persecution in the absence of any evidence of past

persecution, an alien must make some showing that

authorities in his country of nationality are either aware

of his activities or likely to become aware of his

activities.”);   Jian Xing Huang v. INS, 421 F.3d 125, 128-29

(2d Cir. 2005) (holding that, absent solid record support

for petitioner’s assertion that he would persecuted, his

fear was “speculative at best”).

II.   Zheng’s Family Planning Claim

      Substantial evidence supports the agency’s

determination that Zheng failed to establish a well-founded

fear of persecution based on the birth of his two United

States citizen children.   As Zheng conceded, his wife is

exempt from China’s family policy because she is a United

States citizen, and his children would remain in the United



                              4
States with his wife if he were removed to China.    See Shao

v. Mukasey, 546 F.3d 138, 143 (2d Cir. 2008) (observing that

absent evidence of a “perceived violation of [China’s family

planning policy], an alien could hardly demonstrate an

objectively reasonable fear of any enforcement action”).

III. Motion to Remand

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

abuse of discretion, see Li Yong Cao v. Dep't of Justice,

421 F.3d 149, 151, 157 (2d Cir. 2005), and detect no such

abuse on this record.   In support of his motion, Zheng

submitted a filing receipt for an immigrant petition filed

on his behalf by his wife.   The BIA reasonably denied

Zheng’s motion, finding that he failed to demonstrate that

he is eligible for adjustment of status, and that,

accordingly, he failed to demonstrate that the new evidence

was likely to change the outcome of his case.   See INS v.

Abudu, 485 U.S. 94, 104-05 (1988); Poradisova v. Gonzales,

420 F.3d 70, 78 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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



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

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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