Zhen Liang v. Lynch

14-1911
Liang v. Lynch
BIA
Poczter, IJ
A200 591 939
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of July, two thousand fifteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 ZHEN LIANG,
14 Petitioner,
15
16 v. 14-1911
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,*
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
25 LLC, New York, New York.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is
automatically substituted for former Attorney General Eric H. Holder, Jr. as Respondent.
1 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
2 Attorney General; M. Jocelyn Lopez
3 Wright, Senior Litigation Counsel;
4 Sara J. Bayram, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner Zhen Liang, a native and citizen of the People’s
14 Republic of China, seeks review of a May 16, 2014, decision of
15 the BIA affirming a December 7, 2011, decision of an Immigration
16 Judge (“IJ”) denying Liang’s application for asylum,
17 withholding of removal, and relief under the Convention Against
18 Torture (“CAT”). In re Zhen Liang, No. A200 591 939 (B.I.A.
19 May 16, 2014), aff’g No. A200 591 939 (Immig. Ct. N.Y. City Dec.
20 7, 2011). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 We have reviewed the IJ’s decision as modified by the BIA.
23 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
24 (2d Cir. 2005). The applicable standards of review are well
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
2 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
3 For asylum applications like Liang’s, governed by the REAL
4 ID Act, the agency may, “[c]onsidering the totality of the
5 circumstances . . . base a credibility determination on the
6 demeanor, candor, or responsiveness of the applicant or
7 witness, the inherent plausibility of the applicant’s or
8 witness’s account,” and inconsistencies in an applicant’s
9 statements and other record evidence “without regard to whether
10 an inconsistency, inaccuracy, or falsehood goes to the heart
11 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
12 Xia Lin, 534 F.3d at 163-64. Here, the agency’s adverse
13 credibility determination is supported by substantial
14 evidence.
15 The IJ reasonably relied on discrepancies between Liang’s
16 testimony and his parents’ letter. Xiu Xia Lin, 534 F.3d at17 163-64. Liang testified that police in China regularly come
18 to his home looking for him, but his parents’ letter stated that
19 they came to his home only once in October 2009. In addition,
20 Liang testified that he has never practiced Falun Gong and will
21 not do so in the future; however, his parents stated that Liang
3
1 told them he could now practice Falun Gong “free and open in
2 the United States.”
3 The IJ reasonably relied on these discrepancies. The
4 first discrepancy casts doubt on the primary element of Liang’s
5 claim—that police are searching for him for distributing Falun
6 Gong flyers. Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d
7 289, 295 (2d Cir. 2006) (per curiam). The second discrepancy
8 casts doubt on the veracity of Liang’s entire claim. In
9 particular, Liang’s parents’ statement — that Liang told them
10 he could practice Falun Gong freely in the United States —
11 directly contradicts Liang’s testimony that he will never
12 practice Falun Gong. Accordingly, the IJ reasonably based her
13 credibility determination on these inconsistencies.
14 Moreover, the IJ was not required to credit Liang’s
15 explanations, which were unconvincing. Majidi v. Gonzales,
16 430 F.3d 77, 80-81 (2d Cir. 2005).
17 Considering these inconsistences, as well as Liang’s
18 insufficient explanations, the “totality of the circumstances”
19 supports the IJ’s adverse credibility determination. Xiu Xia
20 Lin, 534 F.3d at 163-64. Accordingly, because all of Liang’s
21 claims rely on his credibility, the agency did not err in denying
4
1 asylum, withholding of removal, and CAT relief because the
2 claims were all based on the same factual predicate. Paul v.
3 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). We therefore
4 do not address the agency’s alternative ruling that Liang failed
5 to meet his burden of proof.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT:
15 Catherine O=Hagan Wolfe, Clerk
5