Zheng v. Barr ( 2020 )

18-3006
Zheng v. Barr
BIA
Sichel, IJ
A205 923 126
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
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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 31st day of March, two thousand twenty.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JIANG ZHENG,
Petitioner,
v. 18-3006
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Norman Kwai Wing Wong, New York,
NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Stephen J. Flynn,
Assistant Director; Lindsay
Marshall, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Jiang Zheng, a native and citizen of the
People’s Republic of China, seeks review of a September 19,
2018, decision of the BIA affirming an October 5, 2017,
decision of an Immigration Judge (“IJ”) denying Zheng’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Jiang
Zheng, No. A 205 923 126 (B.I.A. Sept. 19, 2018), aff’g No. A
205 923 126 (Immig. Ct. N.Y. City Oct. 5, 2017). We assume
the parties’ familiarity with the underlying facts and
procedural history.
Under the circumstances, we have considered both the IJ’s
and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
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determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . . ,
the internal consistency of each such statement . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008).
“We defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167; accord Hong Fei Gao,
891 F.3d at 76. Substantial evidence supports the agency’s
determination that Zheng was not credible as to his claim
that he would attend an unregistered church in China and that
he fears persecution on that account.
The agency reasonably found implausible and inconsistent
Zheng’s testimony regarding his friend who purportedly
introduced him to Christianity and took him to church in
China. See 8 U.S.C. § 1158(b)(1)(B)(iii). Zheng testified
implausibly that he could not remember the friend’s name even
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though they had known each other for “quite some time” having
been playmates in childhood. See Wensheng Yan v. Mukasey,
509 F.3d 63, 66–67 (2d Cir. 2007) (recognizing that an IJ may
rely on inherently implausible testimony particularly if the
finding is “tethered to record evidence”). Zheng later
testified inconsistently that he had known this friend for
only two years, which would have meant Zheng met the friend
when he was approximately 30 years old rather than in
childhood. Zheng could not compellingly explain this
implausible and inconsistent testimony. See Majidi v.
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“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.” (internal quotation marks omitted)).
The agency also reasonably found Zheng’s testimony
inconsistent regarding whether his church in China was
located at the top or bottom of the mountain near his home.
See 8 U.S.C. § 1158(b)(1)(B)(iii). In attempting to explain
this inconsistent testimony, Zheng stated that he did not
know the exact location of the church because he had only
recently begun his religious practice. The IJ was not
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compelled to credit this explanation because Zheng testified
that he lived near the mountain and helped build the roof of
the church structure. See Majidi, 430 F.3d at 80.
The IJ also reasonably relied on Zheng’s unresponsiveness
when asked about his friend in China to whom he purportedly
proselytized on the telephone. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). It took four questions before Zheng
provided the name of his friend, and then he became evasive
again when asked why he did not have a corroborating letter
from that friend.
Having questioned Zheng’s credibility, the agency
reasonably relied further on his failure to rehabilitate his
testimony with reliable corroborating evidence. “An
applicant’s failure to corroborate his or her testimony may
bear on credibility, because the absence of corroboration in
general makes an applicant unable to rehabilitate testimony
that has already been called into question.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency
reasonably declined to credit the unsworn letter from Zheng’s
wife because she is an interested party who was not available
for cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332
(2d Cir. 2013) (“We generally defer to the agency’s evaluation
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of the weight to be afforded an applicant’s documentary
evidence.”); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec.
209, 215 (B.I.A. 2010) (finding that letters from alien’s
friends and family were insufficient to provide substantial
support for alien’s claims because they were from interested
witnesses not subject to cross-examination), overruled on
other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–
38 (2d Cir. 2012). That letter was the only evidence
proffered to corroborate Zheng’s assertion that he had
attended an unregistered church in China.
Given the implausibility, inconsistency, evasiveness,
and corroboration findings, the agency’s adverse credibility
determination is supported by substantial evidence. See
8 U.S.C. § 1158(b)(1)(B)(iii). The determination that Zheng
was not credible as to his claim that he attended an
unregistered church in China and would do so again if removed
is dispositive of asylum, withholding of removal, and CAT
relief because all three claims are based on the same factual
predicate—his fear of persecution for practicing his religion
in an unregistered church in China. See Paul v. Gonzales,
444 F.3d 148, 156–57 (2d Cir. 2006). Contrary to Zheng’s
contention, the agency was not required to apply Hongsheng
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Leng v. Mukasey because the holding in that case applies to
noncitizens attempting “to establish eligibility for relief
based exclusively on activities undertaken after . . . arrival
in the United States.” 528 F.3d 135, 138 (2d Cir. 2008).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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