         10-2907-ag
         Zheng v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A094 938 706
                            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 22nd day of November, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT A. KATZMANN,
 9                DENNY CHIN,
10                    Circuit Judges.
11       _______________________________________
12
13       JIN BIAO ZHENG,
14                Petitioner,
15
16                         v.                                   10-2907-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Oleh R. Tustaniwsky, Brooklyn, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Mark C. Walters, Senior
28                                     Litigation Counsel, Office of
29                                     Immigration Litigation; Zoe J.
30                                     Heller, Civil Division, U.S.
31                                     Department of Justice, Washington,
32                                     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 Jin Biao Zheng, a native and citizen of

 6   China, seeks review of the June 22, 2010, order of the BIA

 7   affirming the July 7, 2008, decision of an Immigration Judge

 8   (“IJ”) denying his application for asylum, withholding of

 9   removal, and CAT relief.    In re Jin Biao Zheng, No. A094 938

10   706 (B.I.A. June 22, 2010), aff’g No. A094 938 706 (Immig.

11   Ct. N.Y. City July 7, 2008).    We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s and the BIA’s decisions, including the portions of

16   the IJ’s decision not explicitly discussed by the BIA.       See

17   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

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

21       The agency’s adverse credibility determination is

22   supported by substantial evidence, given inconsistencies

23   between Zheng’s testimony and his written asylum

24   application.    See 8 U.S.C. § 1158(b)(1)(B)(iii).   While

                                     2
 1   Zheng argues, relying on Secaida-Rosales v. INS, 331 F.3d

 2   297 (2d Cir. 2003), that the IJ committed legal error by

 3   using an “inappropriately stringent standard,” the REAL ID

 4   Act, which governs this case, supersedes Secaida-Rosales;

 5   consequently, the IJ did not err in basing his adverse

 6   credibility determination on inconsistencies and omissions

 7   “collateral or ancillary” to Zheng’s claims.     See Xiu Xia

 8   Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

 9       As the agency found, Zheng’s claim in his asylum

10   application, that ten members of the family planning

11   authority had beaten him, conflicted with his testimony that

12   he was never physically harmed by the Chinese government.

13   Zheng also failed to testify in conformity with his

14   statement in his application that he was threatened with

15   sterilization.    Furthermore, although he testified that,

16   while he was at a construction site, family planning

17   officials approached his father at home and threatened to

18   target Zheng for forcible sterilization, Zheng did not

19   mention this incident in his application.    To the extent

20   that Zheng argues that these inconsistencies resulted from

21   his poor education and difficulties in translation, a

22   reasonable fact-finder would not be compelled to credit that

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

24   Cir. 2005).

                                     3
 1       As the agency noted, Zheng was also inconsistent in

 2   that he failed to testify in conformity with his assertions

 3   in his application that he had been fined after his wife was

 4   forced to abort her pregnancy and required to attend several

 5   gynecological examinations, or that he had been threatened

 6   with forcible sterilization while at his local family

 7   planning office.   Although Zheng’s explanation, that he did

 8   not testify about the events surrounding his wife’s forced

 9   abortion because they are not directly relevant to his own

10   asylum application, might have raised a valid argument under

11   this Court’s pre-REAL ID Act case law, see Heui Soo Kim v.

12   Gonzales, 458 F.3d 40, 46-49 (2d Cir. 2006), under the REAL

13   ID Act, the agency does not err in considering any

14   inconsistency or omission, see 8 U.S.C.

15   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 167.

16       Moreover, the agency reasonably found that Zheng failed

17   to rehabilitate his testimony, as he did not provide an

18   affidavit from his father corroborating his claim.    See Biao

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

20   (explaining that an applicant’s failure to corroborate his

21   testimony may bear on credibility because the absence of

22   corroboration undermines the applicant’s ability to

23   rehabilitate testimony that was called into question).

                                   4
 1   Contrary to Zheng’s argument, the IJ was not required first

 2   to identify the missing evidence and show that it was

 3   reasonably available.    See Diallo v. Gonzales, 445 F.3d 624,

 4   633-34 (2d Cir. 2006).

 5       Based on the inconsistencies and lack of corroboration

 6   found by the agency, substantial evidence supports the

 7   agency’s adverse credibility determination, 8 U.S.C.

 8   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167, which

 9   provided an adequate basis for denying asylum, withholding

10   of removal, and CAT relief, see Paul v. Gonzales, 444 F.3d

11   148, 155-57 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22
23




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