Zheng v. Sessions ( 2018 )


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  •     16-120
    Zheng v. Sessions
    BIA
    Cheng, IJ
    A205 432 429
    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
    2nd day of May, two thousand eighteen.
    PRESENT:
    JOHN M. WALKER, JR.,
    BARRINGTON D. PARKER,
    REENA RAGGI,
    Circuit Judges.
    _____________________________________
    HONG TONG ZHENG,
    Petitioner,
    v.                                           No. 16-120
    NAC
    JEFFERSON B. SESSIONS III, UNITED
    STATES ATTORNEY GENERAL,
    Respondent.
    _____________________________________
    FOR PETITIONER:            James A. Lombardi, New York,
    New York.
    FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
    Attorney General, Derek C. Julius,
    Assistant Director, Bernard A.
    Joseph, Senior Litigation Counsel,
    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.
    Petitioner Hong Tong Zheng, a native and citizen of the
    People’s Republic of China, seeks review of the BIA’s affirmance
    of an Immigration Judge’s (“IJ’s”) denial of his application
    for asylum, withholding of removal, and relief under the
    Convention Against Torture (“CAT”).     See In re Hong Tong Zheng,
    No. A205 432 429 (B.I.A. Dec. 31, 2015), aff’g No. A205 432 429
    (Immig. Ct. N.Y. City Mar. 11, 2014).    Under the circumstances
    of this case, we review the decision of the IJ as supplemented
    by the BIA, see Yan Chen v. Gonzales, 
    417 F.3d 268
    , 271 (2d Cir.
    2005), applying well-established standards of review, see
    
    8 U.S.C. § 1252
    (b)(4)(B); Xiu Xia Lin v. Mukasey, 
    534 F.3d 162
    ,
    165-66 (2d Cir. 2008).   In so doing, we assume the parties’
    familiarity with the underlying facts and procedural history
    of this case, which we reference only as necessary to explain
    our decision to deny the petition for review.
    “Considering the totality of the circumstances, and all
    relevant factors, a trier of fact may base a credibility
    determination on the demeanor, candor, or responsiveness of the
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    applicant or witness, . . . the consistency between the
    applicant’s . . . written and oral statements . . . , the internal
    consistency of each such statement, [and] the consistency of
    such statements with other evidence of record . . . without
    regard to whether an inconsistency, inaccuracy, or falsehood
    goes to the heart of the applicant’s claim.”      
    8 U.S.C. § 1158
    (b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 
    534 F.3d at 163-64
    .   Here, substantial evidence supports the agency’s
    determination that Hong Tong Zheng was not credible as to his
    claims that Chinese police detained and beat him on account of
    his Christianity, and that they continued to look for him
    afterwards.
    The agency reasonably relied in part on Hong Tong Zheng’s
    demeanor, finding his testimony to be rehearsed and evasive.
    See 
    8 U.S.C. § 1158
    (b)(1)(B)(iii); see also Majidi v. Gonzales,
    
    430 F.3d 77
    , 81 n.1 (2d Cir. 2005) (recognizing that particular
    deference is given to the trier of fact’s assessment of
    demeanor).    Hong Tong Zheng’s testimony was clear and concise
    when questioned by his attorney, but he was often unable to
    provide additional details when requested by the IJ or the
    government.
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    The agency also found significant inconsistencies and
    omissions in Hong Tong Zheng’s testimony.   The record supports
    those findings, particularly with regard to whether police
    looked for Hong Tong Zheng after his release from detention.
    Although questioned about his fear of future harm in China, Hong
    Tong Zheng only mentioned that police continued to look for him
    when asked pointed questions by the IJ.   Then, when pressed for
    details, his testimony became inconsistent: he first testified
    that police looked for him at his father’s house twice, once
    in February 2011 and once in April 2011; and he later testified
    that he did not know if police visited his father in April.   See
    Li Hua Lin v. U.S. Dep’t 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.”).
    The agency also reasonably relied on omissions from Hong
    Tong Zheng’s written statement and his mother’s letter
    regarding whether police had visited his father’s house or were
    looking for him.   See 
    8 U.S.C. § 1158
    (b)(1)(B)(iii); see also
    Xiu Xia Lin v. Mukasey, 
    534 F.3d at
    165-67 & n.3.     Although
    asylum applicants are not required to list every incident or
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    provide every detail in their asylum applications because the
    application form provides only limited space, see Pavlova v.
    I.N.S., 
    441 F.3d 82
    , 90 (2d Cir. 2006), Hong Tong Zheng attached
    a detailed written statement of more than two pages to his
    application, which included less pertinent information.
    Furthermore, his mother’s two-page letter stated that Hong Tong
    Zheng would “definitely” be arrested if he returned to China,
    C.A.R. 219, yet failed to mention that police had continued to
    look for him as support for that assertion.     See Xiu Xia Lin
    v. Mukasey, 
    534 F.3d at
    165-66 & n.3.
    The agency further reasonably declined to give weight to
    a handwritten letter from Hong Tong Zheng’s church in China
    because the author’s identity was not provided.     See Xiao Ji
    Chen v. U.S. Dep’t of Justice, 
    471 F.3d 315
    , 341-42 (2d Cir.
    2006) (holding that determination of the weight of evidence is
    largely a matter of agency discretion).   Moreover, the letter
    omits any mention that Hong Tong Zheng and his fellow church
    members were arrested while attending service at the church.
    See Xiu Xia Lin v. Mukasey, 
    534 F.3d at
    166-67 & n.3; see also
    Biao Yang v. Gonzales, 
    496 F.3d 268
    , 273 (2d Cir. 2007) (“An
    applicant’s failure to corroborate his . . . testimony may bear
    on credibility, because the absence of corroboration in general
    5
    makes an applicant unable to rehabilitate testimony that has
    already been called into question.”).   Hong Tong Zheng did not
    provide a compelling explanation for this or any of the other
    record inconsistencies.    See Majidi v. Gonzales, 
    430 F.3d at 80
     (“A petitioner must do more than offer a plausible
    explanation for his inconsistent statements to secure relief;
    he must demonstrate that a reasonable fact-finder would be
    compelled to credit his testimony.” (emphasis in original)
    (internal quotation marks omitted)).
    In sum, given its findings as to demeanor and
    inconsistencies in the record, the agency’s adverse credibility
    determination is supported by substantial evidence.     See
    
    8 U.S.C. § 1158
    (b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 
    534 F.3d at 167
    .   That determination is dispositive of Hong Tong Zheng’s
    claims for asylum and withholding of removal.1     See Paul v.
    Gonzales, 
    444 F.3d 148
    , 156-57 (2d Cir. 2006).
    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 this petition
    is DISMISSED as moot.    Any pending request for oral argument
    1 Hong Tong Zheng does not challenge the denial of CAT relief
    or the BIA’s denial of his motion to remand.
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    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 of Court
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