Yingsheng Zheng V.Holder , 476 F. App'x 903 ( 2012 )

10-2523-ag BIA
Zheng v. Holder Schoppert, IJ
A088 527 838
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 17th day of April, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 YINGSHENG ZHENG,
14 Petitioner,
15
16 v. 10-2523-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Yingsheng Zheng, pro se, New York,
24 NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Shelley R. Goad, Assistant
28 Director; Carmel A. Morgan, Trial
29 Attorney; Helen Rangel, Law Intern,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Yingsheng Zheng, a native and citizen of the People’s
6 Republic of China, seeks review of a May 27, 2010, decision
7 of the BIA affirming the August 25, 2008, decision of
8 Immigration Judge (“IJ”) Douglas B. Schoppert, which denied
9 his application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Yingsheng Zheng, No. A088 527 838 (B.I.A. May 27, 2010),
12 aff’g No. A088 527 838 (Immig. Ct. N.Y. City Aug. 25, 2008).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
20 562 F.3d 510, 513 (2d Cir. 2009).
21 The only issue before us is whether the agency erred in
22 denying Zheng’s application for asylum and withholding of
23 removal, as Zheng failed to exhaust his challenge to the
2
1 denial of CAT relief. See 8 U.S.C. § 1252(d)(1); Karaj v.
2 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (citing Beharry
3 v. Ashcroft, 329 F.3d 51, 59 (2d Cir. 2003)).
4 For asylum applications such as Zheng’s, governed by
5 the amendments made to the Immigration and Nationality Act
6 by the 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, candor, or responsiveness,”
9 the plausibility of his or her account, and inconsistencies
10 in his or her statements, without regard to whether they go
11 “to the heart of the applicant’s claim.” See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
13 167 (2d Cir. 2008). We will “defer to an IJ’s credibility
14 determination unless, from the totality of the
15 circumstances, it is plain that no reasonable fact-finder
16 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
17 In this case, the agency reasonably based its adverse
18 credibility determination on omissions, inconsistencies, and
19 implausibilities in Zheng’s asylum application and his
20 testimony, as well as on his demeanor.
21 Zheng indicated in his asylum application that he was
22 visited by family planning officials on two occasions;
23 during the first visit they threatened him, and during the
3
1 second visit they attempted to arrest him in order to have
2 him sterilized, but he eluded them and went into hiding. He
3 testified however that during the first visit, the officials
4 not only threatened him, but also assaulted him. There were
5 also discrepancies as to when Zheng went into hiding - he
6 stated the date as September 2006 in his asylum application,
7 but testified that he went into hiding in July 2006, before
8 changing his testimony to September 2006. These
9 inconsistencies and the omissions were proper grounds for
10 the IJ’s adverse credibility finding. See 8 U.S.C.
11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166.
12 The IJ further based his adverse credibility finding on
13 Zheng’s demeanor, and on implausibilities in parts of
14 Zheng’s account. Specifically, as to demeanor, the IJ found
15 that Zheng was testifying in a “rehearsed, non-spontaneous
16 manner,” his answers were often vague, and “at times non-
17 responsive to questions.” We generally defer to an IJ’s
18 demeanor findings, and will do so here. See Majidi v.
19 Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005); see also
20 8 U.S.C. § 1158(b)(1)(B)(iii).
21 Finally, the IJ found Zheng’s account of his escape
22 from family planning officials to be implausible. Zheng
4
1 testified that in September 2006, family planning officials
2 came to his home, and he had an argument with them, and
3 then, when they tried to arrest him, he escaped out the back
4 door of his home. In his asylum application, describing the
5 same incident, Zheng stated that family planning officials
6 “stepped forward to arrest” him. The IJ concluded that,
7 because, based on Zheng’s description, the family planning
8 officials “were clearly in close physical proximity” to him,
9 it was not plausible “that under those circumstances [Zheng]
10 may have been able to run away without being apprehended.”
11 Accordingly, the implausibility finding provides additional
12 support for the adverse credibility determination. See
13 Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007).
14 The BIA, in turn, affirmed the IJ’s adverse credibility
15 determination, explicitly addressing Zheng’s omission,
16 inconsistencies, and demeanor. Given the totality of the
17 circumstances, including Zheng’s omission, inconsistencies,
18 implausibility, and demeanor, substantial evidence supports
19 the agency’s adverse credibility determination. See
20 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
21 As the only basis for Zheng’s claim depends on his
22 credibility, the adverse credibility determination is also
23 dispositive of his request for withholding of removal. See
5
1 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wu Biao
2 Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
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