Dan-Leung Zheng v. Holder

408 F. App'x 499
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 7, 2011
DocketNo. 09-4957-ag
StatusPublished

This text of 408 F. App'x 499 (Dan-Leung Zheng v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dan-Leung Zheng v. Holder, 408 F. App'x 499 (2d Cir. 2011).

Opinion

SUMMARY ORDER

Petitioner Dan-Leung Zheng, a native and citizen of the People’s Republic of China, seeks review of a November 4, 2009, decision of the BIA, denying his motion to remand and affirming the January 31, 2008, decision of Immigration Judge (“IJ”) Alan Page, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Dan-Leung Zheng, No. A072 468 331 (B.I.A. Nov. 4, 2009), affg No. A072 468 331 (Immig.Ct.N.Y.C. Jan. 31, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Under the circumstances of this case, we review both the IJ’s and the BIA’s decisions for the sake of completeness. See Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). 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).

I. Application for Relief

A. Asylum

1. Past Persecution

Substantial evidence supports the IJ’s adverse credibility determination with regard to Zheng’s claim that he suffered past persecution on account of his “other resistance” to China’s family planning policy.1 As the IJ found, Zheng testified in his asylum interview that: (1) when family planning officials came to his home to force his wife to have an abortion, he fled out the back door and hid with a friend; (2) five or six family planning officials came to his home to apprehend his wife; and (3) he learned of the forced abortion from a friend two days after it occurred. However, contrary to that testimony, Zheng testified at his merits hearings that: (1) in an attempt to block the officials from entering his home, he was “pushed aside” as he witnessed two officials “drag” his wife away, and he remained at his home until his wife returned the following day; (2) only three family planning officials came to his home; and (3) he learned of the forced abortion when his wife returned from the hospital the following day, which led him to confront family planning officials at their office. 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.[501]*5012000), the discrepancies here relate to events at the heart of Zheng’s claim-that he had suffered past persecution based on his “other resistance” to his wife’s forced abortion. Thus, the IJ reasonably relied on the cumulative effect of these inconsistencies to call into question Zheng’s credibility. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) (emphasizing that “even where an IJ relies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential by the fact-finder”). (internal quotation marks and citations omitted)

Since the record supports the IJ’s findings of conflicting testimony, the IJ was not required to credit Zheng’s explanation that he omitted details of the altercation because he thought the incident was insignificant and because the interpreter at the hearing had “cut off’ his answers. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (holding that the agency need not credit an applicant’s explanations for inconsistent testimony unless those explanations would compel a reasonable fact-finder to do so). Moreover, the proffered explanation fails to account for inconsistencies about his initial reaction to the officials, the number of officials who came to his home, and how he learned of the forced abortion.

In finding Zheng not credible, the IJ also reasonably relied on Zheng’s failure to provide credible, corroborating evidence in support of his claim that he had suffered past persecution. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.2007) (holding that an applicant’s failure to corroborate his testimony may bear on credibility, either because the absence of particular corroborating evidence is viewed as suspicious, or because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question).

Because the IJ’s adverse credibility determination was reasonable and is dispositive of his claim of past persecution, we do not reach Zheng’s challenges to the agency’s findings that he failed to meet his burden of proof.

2. Well-Founded Fear of Future Persecution

Because Zheng failed to demonstrate that he had suffered past persecution, he was not entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b). Absent past persecution, an applicant can demonstrate eligibility for asylum based on a well-founded fear of future persecution by demonstrating that he subjectively fears persecution and that this fear is objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004).

i. Family Planning Policy

The agency reasonably found that Zheng failed to demonstrate a well-founded fear of persecution because the evidence he submitted did not indicate that forcible sterilizations are mandated in Fujian Province after the birth of a second child. As the BIA observed, the evidence Zheng submitted was similar to that which it addressed in Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007). We have previously reviewed, and found no error in, the BIA’s analysis in that case. Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.2008).

Furthermore, contrary to Zheng’s assertions, the agency sufficiently considered all of the evidence he submitted, and adequately explained its findings. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (holding that the agency is not required to “expressly parse or refute on [502]*502the record each individual argument or piece of evidence offered by the petitioner” as long as it “has given reasoned consideration to the petition, and made adequate findings”), (internal quotation marks omitted). The IJ also reasonably gave minimal weight to the letter and sterilization certificates Zheng submitted from a fellow Changle villager and from a relative. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315

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Related

Santoso v. Holder
580 F.3d 110 (Second Circuit, 2009)
Jian Hui Shao v. Mukasey
546 F.3d 138 (Second Circuit, 2008)
Biao Yang v. Gonzales
496 F.3d 268 (Second Circuit, 2007)
Wei Guang Wang v. Board of Immigration Appeals
437 F.3d 270 (Second Circuit, 2006)
Tu Lin v. Alberto R. Gonzales
446 F.3d 395 (Second Circuit, 2006)
Corovic v. Mukasey
519 F.3d 90 (Second Circuit, 2008)
Mufied v. Mukasey
508 F.3d 88 (Second Circuit, 2007)
Weng v. Holder
562 F.3d 510 (Second Circuit, 2009)
J-W-S
24 I. & N. Dec. 185 (Board of Immigration Appeals, 2007)

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Bluebook (online)
408 F. App'x 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dan-leung-zheng-v-holder-ca2-2011.