Xiu Zheng v. Lynch ( 2016 )

13-2353
Zheng v. Lynch
BIA
Zagzoug, IJ
A089 880 293
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.
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 26th day of February, two thousand sixteen.
PRESENT:
ROSEMARY S. POOLER,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
XIU ZHENG,
Petitioner,
v. 13-2353
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL1,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, Law Offices of Michael
Brown, New York, New York.
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Loretta E. Lynch is automatically substituted as
the respondent in this case pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Paul Fiorino, Senior
Litigation Counsel; Franklin M.
Johnson, Jr., Trial Attorney, 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.
Xiu Zheng, a native and citizen of the People’s
Republic of China, seeks review of the BIA’s May 21, 2013
decision, affirming an Immigration Judge’s (“IJ”) February
14, 2012 denial of his application for asylum and
withholding of removal on credibility grounds, and denying
in the first instance his motion to remand. In re Xiu
Zheng, No. A089 880 293 (B.I.A. May 21, 2013), aff’g No.
A089 880 293 (Immig. Ct. N.Y. City Feb. 14, 2012). We
assume the parties’ familiarity with the underlying facts
and procedural history of this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified and supplemented by the BIA.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271
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(2d Cir. 2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008); Li Yong Cao v.
U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005).
Adverse Credibility Determination
The agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
applicant’s demeanor, and inconsistencies in his statements
and other record evidence regardless of whether the
inconsistencies go “to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
64. Substantial evidence supports the agency’s
determination that Zheng was not credible.
The agency reasonably relied in part on Zheng’s
demeanor, noting that he appeared to testify from a
memorized script. See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi
v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). The
agency’s demeanor finding and the overall credibility
determination are bolstered by record inconsistencies
related to what year Zheng was detained in China, where he
lived when he first arrived in the United States, whether
his sister was in compliance with her U.S. visa, and how he
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obtained a copy of his passport from China. See Li Hua Lin
v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006);
see also Xiu Xia Lin, 534 F.3d at 165-66. Having questioned
Zheng’s credibility, the agency reasonably relied further on
his failure to provide certain evidence corroborating his
claim or rehabilitating his testimony. See Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
Given the demeanor, inconsistency, and corroboration
findings, the agency’s adverse credibility determination is
supported by substantial evidence, and is dispositive of
Zheng’s claims for asylum and withholding of removal. See
8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006). Accordingly, we do not reach the
agency’s alternative basis for denying asylum—Zheng’s
failure to timely file his application.
Motion to Remand
“A motion to remand that relies on newly available
evidence is held to the substantive requirements of a motion
to reopen.” Li Yong Cao, 421 F.3d at 156. Therefore, the
agency may deny a motion to remand based on “the movant’s
failure to . . . [provide] material, previously unavailable
evidence that would be introduced at a new hearing.” Id.
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We find no error in the BIA’s determination that
Zheng’s sister’s affidavit was previously available and
could have been presented at his hearing before the IJ. See
8 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292,
294 & n.3 (2d Cir. 2006) (per curiam) (looking to the date
on which the IJ closed the record as the date before which
the evidence must have been unavailable). Accordingly, the
BIA did not abuse its discretion in denying Zheng’s motion
to remand. See Li Yong Cao, 421 F.3d 156-57.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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