Guo Qin Zheng v. Holder , 390 F. App'x 41 ( 2010 )

09-3571-ag
Zheng v. Holder
BIA
Bukszpan, IJ
A098 384 320
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 18 th day of August, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge.
JON O. NEWMAN,
DENNY CHIN,
Circuit Judges.
_______________________________________
GUO QIN ZHENG,
Petitioner,
v. 09-3571-ag
NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Jeffrey E. Baron, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Stephen J. Flynn, Assistant Director,
Karen Y. Stewart, Attorney, Office of
Immigration Litigation, Civil Divi-
sion, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Guo Qin Zheng, a native and citizen of the
People’s Republic of China, seeks review of a July 23, 2009,
order of the BIA, affirming the October 26, 2006, decision of
Immigration Judge (“IJ”) Joanna Miller Bukszpan, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Guo Qin
Zheng, No. A098 384 320 (B.I.A. July 23, 2009), aff’g No. A098
384 320(Immig. Ct. N.Y. City Oct. 26, 2006). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yun-Zui
Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
Substantial evidence supports the IJ’s adverse
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credibility determination. 1 The IJ reasonably relied on
Zheng’s demeanor, which she found to be “highly evasive and
nonresponsive.” As the BIA noted, Zheng was evasive and non-
responsive to the IJ’s questions concerning how long he was
beaten, whether any events transpired between his June arrest
and his departure from China, why his mother was arrested, and
whether he obtained a statement from the person who introduced
him to Falun Gong. We afford particular deference to such
assessments of an applicant’s demeanor. See Majidi v.
Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005); see also Li Hua
Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)
(holding that “[w]e can be [] more confident in our review of
observations about an applicant’s demeanor where . . . they
are supported by specific examples of inconsistent
testimony”). Moreover, based on the BIA’s citations to non-
reponsive testimony, which are supported by the record, we
cannot find that we are compelled to overturn the demeanor
finding.
Furthermore, the IJ reasonably found several aspects of
Zheng’s testimony implausible. The IJ based this finding, in
part, on the lack of corroborating evidence in the record to
Because Zheng filed his asylum application before May 11,
1
2005, the amendments made to the Immigration and Nationality Act
by the REAL ID Act of 2005 do not apply. See Pub. L. No. 109-13,
§ 101(h)(2), 119 Stat. 231, 305 (2005).
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support Zheng’s assertion that he began to practice, and
continues to practice, Falun Gong because of his ill health.
The IJ’s finding in this respect was proper, as an applicant’s
failure to corroborate his testimony may bear on credibility.
See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341
(2d Cir. 2006). Although Zheng offered an explanation to the
IJ as to why his testimony was not implausible, the IJ was not
required to credit it. See Majidi, 430 F.3d at 80-81.
Moreover, such explanations–even if rational–“do not defeat a
finding that the account is implausible.” See Ying Li v.
BCIS, 529 F.3d 79, 83 (2d Cir. 2008).
Lastly, the IJ reasonably relied on discrepancies in
Zheng’s testimony to find him not credible. The IJ found
that: (1) although Zheng testified that he practiced Falun
Gong once a week, his witness asserted that he practiced it
every day; and (2) although Zheng testified that his mother
was arrested with him and later helped orchestrate his release
from detention, his mother’s letter omitted these facts.
Although minor and isolated discrepancies may be insufficient
to support an adverse credibility finding, see Diallo v. INS,
232 F.3d 279, 288 (2d Cir. 2000), the multiple discrepancies
here were not isolated, and even if minor in and of
themselves, relate to the basis of Zheng’s fear of
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persecution. Thus, the IJ reasonably relied on the cumulative
effect of Zheng’s inconsistent testimony to call into question
his credibility. See Tu Lin v. Gonzales, 446 F.3d 395, 402
(2d Cir. 2006); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162,
166-67 & n.3 (2d Cir. 2008) (noting that inconsistencies and
omissions are “functionally equivalent”).
Accordingly, substantial evidence supports the agency’s
adverse credibility determination. See Zhou Yun Zhang v. U.S.
INS, 386 F.3d 66, 74 (2d Cir. 2004). Because the only
evidence of a threat to Zheng’s life or freedom depended upon
his credibility, the adverse credibility determination in this
case necessarily precludes success on his claims for asylum
and withholding of removal. See Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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