Rong Zheng v. Holder , 387 F. App'x 116 ( 2010 )


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  •     07-3412-ag
    Zheng v. Holder
    BIA
    Sichel, IJ
    A095 161 001
    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 30 th day of July, two thousand ten.
    PRESENT:
    REENA RAGGI,
    RICHARD C. WESLEY,
    GERARD E. LYNCH,
    Circuit Judges.
    ______________________________________
    RONG ZHENG,
    Petitioner,
    v.                                   07-3412-ag
    NAC
    ERIC H. HOLDER, JR., *
    UNITED STATES ATTORNEY GENERAL,
    Respondent.
    ______________________________________
    FOR PETITIONER:               Michael Brown, New York, New York.
    *
    Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder, Jr., is
    automatically substituted for former Attorney General
    Alberto Gonzales as the respondent in this case.
    FOR RESPONDENT:         Gregory G. Katsas, Assistant
    Attorney General; Michelle Gorden
    Latour, Assistant Director; Tracie
    N. Jones, Trial Attorney, Office of
    Immigration Litigation, United
    States Department of Justice,
    Washington, D.C.
    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.
    Rong Zheng, a native and citizen of the People’s
    Republic of China, seeks review of a July 13, 2007, order of
    the BIA affirming the August 23, 2005, decision of
    Immigration Judge (“IJ”) Helen J. Sichel, denying his
    application for asylum, withholding of removal, and relief
    under the Convention Against Torture (“CAT”).    In re Rong
    Zheng No. A095 161 001 (BIA July 13, 2007), aff’g No. A095
    161 001 (Immig. Ct. N.Y. City Aug. 23, 2005).    We assume the
    parties’ familiarity with the underlying facts and
    procedural history in this case.
    Under the circumstances of this case, we review the
    IJ’s decision as modified by the BIA decision.    See Xue Hong
    Yang v. U.S. Dep’t of Justice, 
    426 F.3d 520
    , 522 (2d Cir.
    2005).   The applicable standards of review are well
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    established.    See 
    8 U.S.C. § 1252
    (b)(4)(B); Yanqin Weng v.
    Holder, 
    562 F.3d 510
    , 513 (2d Cir. 2009).
    I.   Zheng’s Falun Gong Claim
    Substantial evidence supports the agency’s
    determination that Zheng did not credibly establish that he
    suffered past persecution due to his Falun Gong practice.
    See Secaida-Rosales v. INS, 
    331 F.3d 297
    , 307 (2d Cir.
    2003).    The IJ reasonably found Zheng not credible based on:
    (1) his inconsistent testimony regarding the date he was
    allegedly arrested; (2) his admittedly false claim that he
    was persecuted on account of his homosexuality; (3) his
    inconsistent testimony about what information he provided in
    his first asylum application; and (4) his lengthy delay in
    raising his Falun Gong claim.       See Yun-Zui Guan v. Gonzales,
    
    432 F.3d 391
    , 398 (2d Cir. 2005) (upholding adverse
    credibility determination based “on the commonsense
    observation that it is inconsistent for a petitioner to
    respond to the same question about the nature of his asylum
    claim with two entirely different responses”).       Although
    petitioner offered explanations for these discrepancies, a
    reasonable fact finder would not be compelled to credit
    them.    See Majidi v. Gonzales, 
    430 F.3d 77
    , 80-81 (2d Cir.
    2005).
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    The agency also reasonably determined that Zheng failed
    to establish a well-founded fear of future persecution due
    to his practice of Falun Gong in the United States, as he
    failed to present any evidence indicating that authorities
    in China are aware or likely to become aware of his
    practice.   See Hongsheng Leng v. Mukasey, 
    528 F.3d 135
    , 143
    (2d Cir. 2008) (“[T]o establish a well-founded fear of
    persecution in the absence of any evidence of past
    persecution, an alien must make some showing that
    authorities in his country of nationality are either aware
    of his activities or likely to become aware of his
    activities.”);   Jian Xing Huang v. INS, 
    421 F.3d 125
    , 128-29
    (2d Cir. 2005) (holding that, absent solid record support
    for petitioner’s assertion that he would persecuted, his
    fear was “speculative at best”).
    II.   Zheng’s Family Planning Claim
    Substantial evidence supports the agency’s
    determination that Zheng failed to establish a well-founded
    fear of persecution based on the birth of his two United
    States citizen children.   As Zheng conceded, his wife is
    exempt from China’s family policy because she is a United
    States citizen, and his children would remain in the United
    4
    States with his wife if he were removed to China.    See Shao
    v. Mukasey, 
    546 F.3d 138
    , 143 (2d Cir. 2008) (observing that
    absent evidence of a “perceived violation of [China’s family
    planning policy], an alien could hardly demonstrate an
    objectively reasonable fear of any enforcement action”).
    III. Motion to Remand
    We review the BIA's denial of a motion to remand for
    abuse of discretion, see Li Yong Cao v. Dep't of Justice,
    
    421 F.3d 149
    , 151, 157 (2d Cir. 2005), and detect no such
    abuse on this record.   In support of his motion, Zheng
    submitted a filing receipt for an immigrant petition filed
    on his behalf by his wife.   The BIA reasonably denied
    Zheng’s motion, finding that he failed to demonstrate that
    he is eligible for adjustment of status, and that,
    accordingly, he failed to demonstrate that the new evidence
    was likely to change the outcome of his case.   See INS v.
    Abudu, 
    485 U.S. 94
    , 104-05 (1988); Poradisova v. Gonzales,
    
    420 F.3d 70
    , 78 (2d Cir. 2005).
    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
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    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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