Jian Can Zheng v. Holder

11-2086-ag
Zheng v. Holder
BIA
Mulligan, IJ
A089 198 271
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 6th day of February, two thousand twelve.
5
6 PRESENT:
7 ROGER J. MINER,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11
12 _______________________________________
13
14 JIAN CAN ZHENG,
15 Petitioner,
16
17 v. 11-2086-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22
23 ______________________________________
24
25 FOR PETITIONER: Farah Loftus, Law Office of Farah
26 Loftus, Century City, CA.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Ada Bosque, Senior
30 Litigation Counsel; Jonathan F.
31 Potter, Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Jian Can Zheng, a native and citizen of
10 China, seeks review of a April 27, 2011, order of the BIA
11 affirming the July 1, 2009, decision of Immigration Judge
12 (“IJ”) Thomas J. Mulligan denying his application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Jian Can Zheng,
15 No. A089 198 271 (B.I.A. Apr. 27, 2011), aff’g No. A089 198
16 271 (Immigr. Ct. N.Y. City July 1, 2009). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history of this case.
19 Under the circumstances of this case, we review the
20 IJ’s decision as supplemented by the BIA. See Yan Chen v.
21 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
22 standards of review are well-established. See 8 U.S.C.
23 § 1252(b)(4)(B) (2006); Yanqin Weng v. Holder, 562 F.3d 510,
24 513 (2d Cir. 2009).
25 Zheng challenges both the agency’s adverse credibility
2
1 determination and its alternative finding that the harm he
2 suffered did not rise to the level of persecution.
3 Substantial evidence supports the agency’s adverse
4 credibility determination. See Yanquin Weng, 562 F.3d at
5 513. For applications, such as this one, governed by the
6 REAL ID Act of 2005, the agency may, considering the
7 totality of the circumstances, base a credibility finding on
8 an asylum applicant’s demeanor, the plausibility of his
9 account, and inconsistencies in his statements, without
10 regard to whether they go “to the heart of the applicant’s
11 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) (2006); see also
12 Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).
13 Here, the IJ relied on Zheng’s demeanor to find him not
14 credible, noting that he failed to answer “simple and basic
15 questions,” was “incredibly nervous,” paused for long
16 periods at several points in his testimony, and, overall,
17 gave “an extremely poor impression that he had memorized a
18 script.” Additionally, the IJ found that Zheng could not
19 provide basic details regarding the event that led to his
20 altercation with Chinese officials and his wife’s alleged
21 forced abortion. Because the IJ was in the best position to
22 observe Zheng’s manner while testifying, and identified
3
1 specific examples of problematic testimony, we accord his
2 demeanor finding particular deference. See Shu Wen Sun v.
3 BIA, 510 F.3d 377, 380-81 (2d Cir. 2007) (per curiam); Li
4 Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 109 (2d Cir.
5 2006).
6 Moreover, as the BIA found, even if credible, Zheng did
7 not demonstrate harm rising to the level of persecution
8 because he was not eligible for relief based on the harm
9 suffered by his wife, Shi Liang Lin v. U.S. Dep’t of
10 Justice, 494 F.3d 296, 309 (2d Cir. 2007) (en banc), and the
11 single incident with family planning officials in which he
12 was punched several times in the chest did not rise to the
13 level of persecution, see Jian Qui Liu v. Holder, 632 F.3d
14 820, 822 (2d Cir. 2011) (per curiam) (holding that a minor
15 beating by family planning officials who did not have “any
16 intention of arresting or detaining” petitioner did not
17 constitute persecution where no lasting physical injury
18 resulted). Contrary to Zheng’s assertion, because his past
19 harm did not rise to the level of persecution, he is not
20 entitled to a presumption of a well-founded fear of
21 persecution. See 8 C.F.R. § 1208.13(b)(1) (2001).
22 Furthermore, because Zheng was unable to show the objective
4
1 likelihood of persecution needed to make out an asylum
2 claim, he was necessarily unable to meet the higher standard
3 required to succeed on a claim for withholding of removal.
4 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). We
5 do not reach Zheng’s claim for CAT relief as he did not
6 exhaust it before the BIA. See Foster v. INS, 376 F.3d 75,
7 78 (2d Cir. 2004).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DENIED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2) and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
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