Huodi Zheng v. Holder ( 2013 )

12-934
Zheng v. Holder
BIA
Morace, IJ
A099 559 574
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of April, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12
13 _____________________________________
14
15 HUODI ZHENG,
16 Petitioner,
17
18 v. 12-934
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Fuhao Yang, New York, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; William C. Peachey,
29 Assistant Director; Lindsay Corliss,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Huodi Zheng, a native and citizen of China,
11 seeks review of a February 8, 2012, order of the BIA,
12 affirming an October 6, 2009, decision of Immigration Judge
13 (“IJ”) Philip L. Morace, denying his application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Huodi Zheng, No. A099 559
16 574 (B.I.A. Feb. 8, 2012), aff’g No. A099 559 574 (Immig.
17 Ct. N.Y. City Oct. 6, 2009). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we have
21 considered both the IJ’s and the BIA’s opinions “for the
22 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
23 (2d Cir. 2008). The applicable standards of review are
24 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
25 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For
2
1 applications like this one, governed by the REAL ID Act of
2 2005, the agency may, considering the totality of the
3 circumstances, base a credibility finding on an asylum
4 applicant’s demeanor, the plausibility of his account, and
5 inconsistencies in his statements, without regard to whether
6 they go “to the heart of the applicant’s claim.” 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
8 265 (B.I.A. 2007). Analyzed under these standards, the
9 agency’s adverse credibility determination is supported by
10 substantial evidence.
11 In finding Zheng not credible, the agency reasonably
12 relied on the omission of his detention and beating from his
13 original asylum application. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
15 166 (2d Cir. 2008) (providing that, for purposes of
16 analyzing a credibility determination, “[a]n inconsistency
17 and an omission are . . . functionally equivalent”). Zheng
18 attempted to explain this omission by stating that his
19 attorney originally asked him only about his wife’s
20 persecution, that he was prompted to submit a supplemental
21 affidavit about his own experiences in 2007. However, the
22 IJ was not required to credit this explanation, as it would
3
1 not necessarily be compelling to a reasonable fact-finder.
2 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
3 (holding that an agency need not credit an applicant’s
4 explanations for inconsistencies in the record unless those
5 explanations would compel a reasonable fact-finder to do
6 so). As the IJ explained, it was not plausible that Zheng’s
7 original asylum application would describe the events of the
8 day his wife was forcibly taken to have an intrauterine
9 device inserted, but fail to mention that on the same day
10 and as part of the same incident, he was arrested and beaten
11 by family planning officials. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Wensheng Yan v. Mukasey, 509 F.3d 63,
13 66-67 (2d Cir. 2007). Moreover, Zheng’s asylum application
14 reflects that he had never been arrested or detained.
15 Furthermore, the agency did not err in affording little
16 evidentiary weight to a document that purported to be a
17 police report from China, on the grounds that it was
18 unauthenticated and was issued fourteen years after the
19 arrest described. See Shunfu Li v. Mukasey, 529 F.3d 141,
20 149 (2d Cir. 2008); Biao Yang v. Gonzales, 496 F.3d 268, 273
21 (2d Cir. 2007) (per curiam).
22
4
1 In light of the agency’s properly supported adverse
2 credibility finding, it did not err in denying Zheng’s
3 applications for relief. See Paul v. Gonzales, 444 F.3d
4 148, 156 (2d Cir. 2006) (holding that the agency need not
5 analyze separately a withholding of removal claim based on
6 the same facts as an applicant’s asylum claim); Xue Hong
7 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
8 2006) (same, with respect to CAT).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
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