         11-3982-ag                                                                     BIA
         Zheng v. Holder                                                         LaForest, IJ
                                                                               A089 913 149



                            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 August, two thousand twelve.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       XIUQIN ZHENG,
14                Petitioner,
15
16                         v.                                   11-3982
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:         Thomas V. Massucci, New York, NY.
24
25       FOR RESPONDENT:         Stuart F. Delery, Acting Assistant
26                               Attorney General; Stephen J. Flynn,
27                               Assistant Director, Imran R. Zaidi, Trial
28                               Attorney, Office of Immigration
29                               Litigation, United States Department of
30                               Justice, Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   is DENIED.

 6       Petitioner Xiuqin Zheng, a native and citizen of the

 7   People’s Republic of China, seeks review of a September 7,

 8   2011, order of the BIA affirming the January 26, 2010,

 9   decision of Immigration Judge (“IJ”) Brigitte LaForest

10   denying her application for asylum, withholding of removal,

11   and relief under the Convention Against Torture (“CAT”).      In

12   re Xiuqin Zheng, No. A089 913 149 (B.I.A. Sept. 7, 2011),

13   aff’g No. A089 913 149 (Immig. Ct. N.Y. City Jan. 26, 2010).

14   We assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       “Where, as here, the BIA adopts the IJ's reasoning and

17   offers additional commentary, we review the decision of the

18   IJ as supplemented by the BIA.”   Wala v. Mukasey, 511 F.3d

19   102, 105 (2d Cir. 2007).   The applicable standards of review

20   are well established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin

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

22       For applications such as Zheng’s, governed by the

23   amendments made to the Immigration and Nationality Act by


                                   2
 1   the REAL ID Act of 2005, the agency may, considering the

 2   totality of the circumstances, base a credibility finding on

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

 4   plausibility of her account, and inconsistencies in her

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

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

 7   see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

 8   2008).   We will “defer to an IJ’s credibility determination

 9   unless, from the totality of the circumstances, it is plain

10   that no reasonable fact-finder could make” such a ruling.

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

12        In this case, the IJ’s adverse credibility

13   determination is supported by substantial evidence.     First,

14   the IJ identified numerous inconsistencies in Zheng’s

15   testimony, for which Zheng provided inadequate explanations.

16   See id. (holding that the agency may rely on “any

17   inconsistency,” as considered with the totality of the

18   circumstances, in making an adverse credibility

19   determination).   Zheng testified that she had given birth to

20   a child in China and that Chinese officials forced her to

21   undergo an abortion when she subsequently became pregnant

22   again.   In addition, at the time of her hearing, Zheng was


                                     3
 1   visibly pregnant and testified that she was due to give

 2   birth in three weeks. However, when questioned about the

 3   number of times she had been pregnant, Zheng testified that

 4   she had been pregnant twice, once in China and once in the

 5   United States.    In addition, although Zheng stated in her

 6   asylum application that she had been arrested in China and

 7   detained for two days, she testified that she had never been

 8   arrested.

 9       In finding Zheng not credible, the IJ also reasonably

10   relied on the vagueness of Zheng’s testimony regarding key

11   elements of her claim.    See Jin Shui Qiu v. Ashcroft, 329

12   F.3d 140, 152 (2d Cir. 2003) (“Where an applicant gives very

13   spare testimony, as here, the [fact-finder] may fairly

14   wonder whether the testimony is fabricated.”), overruled in

15   part on other grounds by Shi Liang Lin v. U.S. Dept. of

16   Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en banc).     As the

17   IJ noted, Zheng’s testimony lacked specific detail regarding

18   the two incidents upon which her claim of past persecution

19   was based: her alleged forced abortion and her alleged

20   arrest by Chinese authorities at an unregistered family

21   church service.

22       The adverse credibility determination also is supported


                                    4
 1   by the IJ’s demeanor finding, which we generally afford

 2   particular deference, especially when, as here, it is

 3   “supported by specific examples of inconsistent testimony.”

 4   Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

 5   Cir. 2006).    The IJ made specific note of several instances

 6   when Zheng paused for thirty seconds or more before

 7   attempting to answer a question; the IJ also noted that

 8   Zheng would often “look around” the room for an extended

 9   period of time “as if trying to remember” before answering

10   and that she answered some questions with “a long silence.”

11       Although Zheng alleged that the deficiencies in her

12   testimony resulted from memory trouble and pregnancy-related

13   symptoms, the IJ was not compelled to accept her

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

15   Cir. 2005).    In sum, given the inconsistencies, as well as

16   Zheng’s vague and evasive testimony, the IJ’s adverse

17   credibility determination is supported by substantial

18   evidence and the agency did not err in denying asylum,

19   withholding of removal, and CAT relief on this basis.     See

20   Xiu Xia Lin, 534 F.3d at 167; Paul v. Gonzales, 444 F.3d

21   148, 156 (2d Cir. 2006).

22       We reject Zheng’s argument that the IJ failed in her

23   duty to develop the record.    The record shows that the IJ
                                    5
 1   made every effort to give Zheng a meaningful opportunity to

 2   elaborate on her claims, probing her testimony when it

 3   lacked detail and asking her to provide explanations for

 4   inconsistencies, discrepancies, and omissions.    See Ming Shi

 5   Xue v. BIA, 439 F.3d 111, 125 n.18 (2d Cir. 2006) (“An IJ's

 6   responsibility to identify, in advance of judgment,

 7   perceived inconsistencies, is not tantamount to a duty to

 8   assist the counseled asylum applicant in putting forward an

 9   affirmative asylum claim in the first place.”).   We also

10   reject Zheng’s argument that the IJ violated her right to

11   due process by failing to inquire further about her alleged

12   memory impairment as Zheng was represented by counsel at her

13   hearing, and, had she suffered from a physical or mental

14   condition that interfered with her ability to testify, her

15   attorney could and should have requested an adjournment.

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition

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

20   this petition is DISMISSED as moot.

21                               FOR THE COURT:
22                               Catherine O’Hagan Wolfe, Clerk
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