         13-4669
         Zhen v. Holder
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A087 541 277
                               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.

 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 8th day of December, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YING FENG ZHEN,
14                Petitioner,
15
16                        v.                                    13-4669
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED
20       STATES ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Gerald Karikari, New York, New York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
27                                      General; Stephen J. Flynn, Assistant
28                                      Director; Lynda A. Do, Attorney,
29                                      Office of Immigration Litigation,
 1                             United States Department of Justice,
 2                             Washington D.C.

 3        UPON DUE CONSIDERATION of this petition for review of a

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

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

 6   is DENIED.

 7        Ying Feng Zhen, a native and citizen of China, seeks

 8   review of a November 14, 2013, decision of the BIA affirming

 9   the April 12, 2012, decision of an Immigration Judge (“IJ”),

10   denying his application for asylum, withholding of removal,

11   and relief pursuant to the Convention Against Torture

12   (“CAT”).     In re Ying Feng Zhen, No. A087 541 277 (B.I.A.

13   Nov. 14, 2013), aff’g No. A087 541 277 (Immig. Ct. N.Y. City

14   Apr. 12, 2012).    We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16        We have reviewed the decision of the IJ as supplemented

17   by the BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

18   Cir. 2005).    The applicable standards of review are well

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

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

21   I.   Adverse Credibility Determination

22        We find no error in the agency’s determination that

23   Zhen was not credible as to his family planning claim.

                                     2
 1   Asylum applications like Zhen’s are governed by the REAL ID

 2   Act of 2005.

 3        The record supports the agency’s finding that Zhen was

 4   often unresponsive while testifying with regard to his

 5   family planning claim.     See Majidi v. Gonzales, 430 F.3d 77,

 6   81 n.1 (2d Cir. 2005); Jin Shui Qiu v. Ashcroft, 329 F.3d

 7   140, 152 (2d Cir. 2003).     The IJ and the Government’s

 8   attorney repeatedly attempted to elicit more detail from

 9   Zhen—either by rephrasing questions or by further probing

10   Zhen’s answers—often to no avail.     See Shunfu Li v. Mukasey,

11   529 F.3d 141, 157 (2d Cir. 2008).     The agency was not

12   required to credit Zhen’s explanation that unresponsiveness

13   is his normal disposition.     See Majidi v. Gonzales, 430 F.3d

14   77, 80-81 (2d Cir. 2005).     Having called Zhen’s credibility

15   into question, the agency reasonably relied further on his

16   failure to provide credible corroborating evidence.        See

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

18   curiam).

19       Given Zhen’s unresponsive testimony and lack of

20   corroborating evidence regarding his family planning claim,

21   the totality of the circumstances supports the agency’s

22   adverse credibility determination.     See Xiu Xia Lin v.



                                     3
 1   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).    That

 2   determination is dispositive of asylum, withholding of

 3   removal, and CAT relief insofar as they were based on Zhen’s

 4   family planning claim.    Paul v. Gonzales, 444 F.3d 148, 156-

 5   57 (2d Cir. 2006).

 6   II.   Burden of Proof

 7         The agency also reasonably determined that Zhen failed

 8   to establish a well-founded fear of persecution based on his

 9   practice of Falun Gong.   Absent past persecution, an

10   applicant may establish eligibility for asylum by

11   demonstrating a well-founded fear of future persecution,

12   8 C.F.R. § 1208.13(b)(2), which must be both subjectively

13   credible and objectively reasonable, Ramsameachire v.

14   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).    To demonstrate

15   such a well-founded fear, an applicant must show either that

16   he would be singled out for persecution or that the country

17   of removal has a pattern or practice of persecuting those

18   similarly situated to him.   8 C.F.R. § 1208.13(b)(2)(iii).

19   Irrespective of the theory, the agency was not compelled to

20   find that Zhen demonstrated a well-founded fear of

21   persecution.

22



                                    4
 1       Although Zhen failed to submit any country conditions

 2   in support of his application, the IJ took administrative

 3   notice of the 2010 State Department Country Reports on Human

 4   Rights Practices.   That report discussed the mistreatment of

 5   certain Falun Gong supporters.    However, because Zhen’s

 6   practice of Falun Gong is neither public nor high-profile,

 7   the agency did not err in finding that he failed to

 8   demonstrate a reasonable possibility of being singled out

 9   for persecution, or that there is a pattern or practice of

10   persecution against similarly situated practitioners.       See

11   Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir. 2008)

12   (providing that the agency is not compelled to resolve

13   conflicts in record evidence in the applicant’s favor so

14   long as substantial evidence raises doubts that authorities

15   will single out the applicant for persecution and the agency

16   does not overlook contrary evidence); Santoso v. Holder, 580

17   F.3d 110, 112 & n.1 (2d Cir. 2009) (denying petition where

18   agency considered background materials and rejected

19   pattern-or-practice claim).

20       Because the agency reasonably found that Zhen failed to

21   demonstrate a well-founded fear of persecution on account of

22   his practice of Falun Gong, it did not err in denying


                                   5
 1   asylum, withholding of removal, and CAT relief insofar as

 2   those claims were based on that practice.    See Paul, 444

 3   F.3d at 156-57.

 4       For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

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

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

 9   oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




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