    13-480 (L)
    Cheng v. Holder
                                                                                       BIA
                                                                                    Bain, IJ
                                                                               A089 249 813
                           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.

             At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 29th day of June, two thousand fifteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             DEBRA ANN LIVINGSTON,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    YING CHENG,
             Petitioner,
                                                               13-480(L);
                      v.                                       13-2951(Con)
                                                               NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                  Jim Li, Flushing, New York.

    FOR RESPONDENT:                  Joyce R. Branda, Acting Assistant
                                     Attorney General; Erica B. Miles,
                                     Senior Litigation Counsel; Jesse

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                          Lloyd Busen, Trial Attorney,
                          Office of Immigration Litigation,
                          United States Department of
                          Justice, Washington, D.C.


       UPON DUE CONSIDERATION of these petitions for review of

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

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

       Ying Cheng, a native and citizen of the People’s Republic

of China, seeks review of a January 31, 2013, decision of the

BIA affirming an Immigration Judge’s (“IJ”) December 28, 2010,

decision denying her application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”); and a July 15, 2013, BIA decision denying her motion

to reopen.    In re Ying Cheng, No. A089 249 813 (B.I.A. Jan. 31,

2013), aff’g No. A089 249 813 (Immig. Ct. N.Y. City Dec. 28,

2010); In re Ying Cheng, No. A089 249 813 (B.I.A. July 15, 2013).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

  I.      Asylum, Withholding of Removal, and CAT Relief

       Cheng challenges for the first time in this appeal the IJ’s

adverse credibility and burden findings with respect to the



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denial of her application for asylum, withholding of removal,

and CAT protection based on her Falun Gong activities.    We

decline to address the IJ’s burden finding because the

government properly raised the affirmative defense of issue

exhaustion. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

104, 124-25 (2d Cir. 2007).   The government does not raise the

defense of issue exhaustion   on Cheng’s adverse credibility

finding, however, and the government’s affirmative defense on

this issue was waived. See id.

    Under the circumstances of this case, we have reviewed the

IJ’s decision as modified by the BIA.    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-established.   8 U.S.C.

§ 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

2009).

    For asylum applications like Cheng’s, governed by the REAL

ID Act of 2005, the agency may, “considering the totality of

the circumstances,” base a credibility finding on an asylum

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of her account, and inconsistencies in her

statements, “without regard to whether” they go “to the heart



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of the applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).    “We defer

. . . to an IJ’s credibility determination unless, from the

totality of the circumstances, it is plain that no reasonable

fact-finder could make such an adverse credibility ruling.”

Xiu Xia Lin, 534 F.3d at 167.       Here, the adverse credibility

determination is supported by substantial evidence.

     First, Cheng’s testimony and application statement were

inconsistent regarding the circumstances surrounding her

detention in 1999, the length of her detention in August 2001,

and whether authorities discovered her family’s Falun Gong

materials and issued a warrant for her brother’s arrest in 2007.

See Xiu Xia Lin, 534 F.3d at 166-67 & n.3.   Cheng did not provide

compelling explanations for these inconsistencies.      See Majidi

v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

     In addition to these inconsistencies, Cheng’s evasive

testimony regarding her brother’s purported arrest warrant and

her entry into the country, as well as her vague testimony

regarding her release from detention further support the

adverse credibility determination.      See Li Zu Guan v. INS, 453

F.3d 129, 140 (2d Cir. 2006); see also Li Hua Lin v. U.S. Dep’t



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of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still

more confident in our review of observations about an

applicant’s demeanor where, as here, they are supported by

specific examples of inconsistent testimony.”).

    Moreover, Cheng’s failure to provide corroboration of the

incidents in China further bore negatively on her credibility.

See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

The IJ was not compelled to credit Cheng’s explanation that she

feared for her family’s safety if they were to mail

corroborating letters, given that she had presumably put them

at risk by having them mail her identity documents in support

of her asylum application.   See Majidi, 430 F.3d at 80-81.

Given Cheng’s inconsistent and vague testimony, as well as her

evasive demeanor and lack of corroboration, the totality of the

circumstances supports the agency’s adverse credibility

finding.   See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);

Xiu Xia Lin, 534 F.3d at 167.



  II. Motion to Reopen

    We review the BIA’s denial of a motion to reopen for an abuse

of discretion, mindful of the Supreme Court’s admonition that



                                5
such motions are “disfavored.”      INS v. Doherty, 502 U.S. 314,

322-23 (1992); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

Aliens seeking to reopen proceedings may move to reopen no later

than 90 days after the final administrative decision was

rendered.     8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2).     Cheng concedes that her motion to reopen was

not made within this statutory period.    However, the limitation

period may be tolled if the alien can demonstrate ineffective

assistance of counsel.     Rashid v. Mukasey, 533 F.3d 127, 130

(2d Cir. 2008).    To benefit from equitable tolling, the alien

must demonstrate “that competent counsel would have acted

otherwise, and that [s]he was prejudiced by h[er] counsel’s

performance.”     Id. at 131 (quotation marks and alterations

omitted).

    The BIA reasonably determined that Cheng was not entitled

to equitable tolling because she failed to demonstrate

prejudice arising from her prior attorney’s alleged ineffective

assistance.    Although Cheng argued that her attorney failed to

corroborate her claims and present additional witnesses on her

behalf, the BIA accurately found that she failed to specify the

evidence or witnesses counsel should have presented and how



                                6
additional actions by counsel would have altered the outcome

of the hearing.    See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.

1994).    The BIA also reasonably found that Cheng did not

persuasively explain how her counsel’s ineffectiveness was the

cause of her inconsistent and implausible testimony, or how the

failure to amend the declaration in support of her asylum

application prejudiced the outcome of her case.    Cheng had an

opportunity to amend the declaration prior to her hearing and

failed to do so. She also failed to submit a revised declaration

with her motion to reopen and contrary to Cheng’s contention,

the BIA considered and reasonably rejected her argument that

she was prejudiced by her counsel’s failure to challenge the

IJ’s adverse credibility finding on appeal.

    For the foregoing reasons, the petitions for review are

DENIED.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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