16-120 Zheng v. Sessions BIA Cheng, IJ A205 432 429 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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of May, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR., BARRINGTON D. PARKER, REENA RAGGI, Circuit Judges. _____________________________________
HONG TONG ZHENG, Petitioner,
v. No. 16-120 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: James A. Lombardi, New York, New York.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General, Derek C. Julius, Assistant Director, Bernard A. Joseph, Senior Litigation Counsel, 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.
Petitioner Hong Tong Zheng, a native and citizen of the
People’s Republic of China, seeks review of the BIA’s affirmance
of an Immigration Judge’s (“IJ’s”) denial of his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). See In re Hong Tong Zheng,
No. A205 432 429 (B.I.A. Dec. 31, 2015), aff’g No. A205 432 429
(Immig. Ct. N.Y. City Mar. 11, 2014). Under the circumstances
of this case, we review the decision of the IJ as supplemented
by the BIA, see Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005), applying well-established standards of review, see
8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
165-66 (2d Cir. 2008). In so doing, we assume the parties’
familiarity with the underlying facts and procedural history
of this case, which we reference only as necessary to explain
our decision to deny the petition for review.
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of the
2 applicant or witness, . . . the consistency between the
applicant’s . . . written and oral statements . . . , the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d at
163-64. Here, substantial evidence supports the agency’s
determination that Hong Tong Zheng was not credible as to his
claims that Chinese police detained and beat him on account of
his Christianity, and that they continued to look for him
afterwards.
The agency reasonably relied in part on Hong Tong Zheng’s
demeanor, finding his testimony to be rehearsed and evasive.
See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular
deference is given to the trier of fact’s assessment of
demeanor). Hong Tong Zheng’s testimony was clear and concise
when questioned by his attorney, but he was often unable to
provide additional details when requested by the IJ or the
government.
3 The agency also found significant inconsistencies and
omissions in Hong Tong Zheng’s testimony. The record supports
those findings, particularly with regard to whether police
looked for Hong Tong Zheng after his release from detention.
Although questioned about his fear of future harm in China, Hong
Tong Zheng only mentioned that police continued to look for him
when asked pointed questions by the IJ. Then, when pressed for
details, his testimony became inconsistent: he first testified
that police looked for him at his father’s house twice, once
in February 2011 and once in April 2011; and he later testified
that he did not know if police visited his father in April. See
Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
2006) (“We can be still more confident in our review of
observations about an applicant’s demeanor where, as here, they
are supported by specific examples of inconsistent
testimony.”).
The agency also reasonably relied on omissions from Hong
Tong Zheng’s written statement and his mother’s letter
regarding whether police had visited his father’s house or were
looking for him. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
Xiu Xia Lin v. Mukasey, 534 F.3d at 165-67 & n.3. Although
asylum applicants are not required to list every incident or
4 provide every detail in their asylum applications because the
application form provides only limited space, see Pavlova v.
I.N.S., 441 F.3d 82, 90 (2d Cir. 2006), Hong Tong Zheng attached
a detailed written statement of more than two pages to his
application, which included less pertinent information.
Furthermore, his mother’s two-page letter stated that Hong Tong
Zheng would “definitely” be arrested if he returned to China,
C.A.R. 219, yet failed to mention that police had continued to
look for him as support for that assertion. See Xiu Xia Lin
v. Mukasey, 534 F.3d at 165-66 & n.3.
The agency further reasonably declined to give weight to
a handwritten letter from Hong Tong Zheng’s church in China
because the author’s identity was not provided. See Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.
2006) (holding that determination of the weight of evidence is
largely a matter of agency discretion). Moreover, the letter
omits any mention that Hong Tong Zheng and his fellow church
members were arrested while attending service at the church.
See Xiu Xia Lin v. Mukasey, 534 F.3d at 166-67 & n.3; see also
Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
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16-120 Zheng v. Sessions BIA Cheng, IJ A205 432 429 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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of May, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR., BARRINGTON D. PARKER, REENA RAGGI, Circuit Judges. _____________________________________
HONG TONG ZHENG, Petitioner,
v. No. 16-120 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: James A. Lombardi, New York, New York.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General, Derek C. Julius, Assistant Director, Bernard A. Joseph, Senior Litigation Counsel, 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.
Petitioner Hong Tong Zheng, a native and citizen of the
People’s Republic of China, seeks review of the BIA’s affirmance
of an Immigration Judge’s (“IJ’s”) denial of his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). See In re Hong Tong Zheng,
No. A205 432 429 (B.I.A. Dec. 31, 2015), aff’g No. A205 432 429
(Immig. Ct. N.Y. City Mar. 11, 2014). Under the circumstances
of this case, we review the decision of the IJ as supplemented
by the BIA, see Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005), applying well-established standards of review, see
8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
165-66 (2d Cir. 2008). In so doing, we assume the parties’
familiarity with the underlying facts and procedural history
of this case, which we reference only as necessary to explain
our decision to deny the petition for review.
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of the
2 applicant or witness, . . . the consistency between the
applicant’s . . . written and oral statements . . . , the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d at
163-64. Here, substantial evidence supports the agency’s
determination that Hong Tong Zheng was not credible as to his
claims that Chinese police detained and beat him on account of
his Christianity, and that they continued to look for him
afterwards.
The agency reasonably relied in part on Hong Tong Zheng’s
demeanor, finding his testimony to be rehearsed and evasive.
See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular
deference is given to the trier of fact’s assessment of
demeanor). Hong Tong Zheng’s testimony was clear and concise
when questioned by his attorney, but he was often unable to
provide additional details when requested by the IJ or the
government.
3 The agency also found significant inconsistencies and
omissions in Hong Tong Zheng’s testimony. The record supports
those findings, particularly with regard to whether police
looked for Hong Tong Zheng after his release from detention.
Although questioned about his fear of future harm in China, Hong
Tong Zheng only mentioned that police continued to look for him
when asked pointed questions by the IJ. Then, when pressed for
details, his testimony became inconsistent: he first testified
that police looked for him at his father’s house twice, once
in February 2011 and once in April 2011; and he later testified
that he did not know if police visited his father in April. See
Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
2006) (“We can be still more confident in our review of
observations about an applicant’s demeanor where, as here, they
are supported by specific examples of inconsistent
testimony.”).
The agency also reasonably relied on omissions from Hong
Tong Zheng’s written statement and his mother’s letter
regarding whether police had visited his father’s house or were
looking for him. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
Xiu Xia Lin v. Mukasey, 534 F.3d at 165-67 & n.3. Although
asylum applicants are not required to list every incident or
4 provide every detail in their asylum applications because the
application form provides only limited space, see Pavlova v.
I.N.S., 441 F.3d 82, 90 (2d Cir. 2006), Hong Tong Zheng attached
a detailed written statement of more than two pages to his
application, which included less pertinent information.
Furthermore, his mother’s two-page letter stated that Hong Tong
Zheng would “definitely” be arrested if he returned to China,
C.A.R. 219, yet failed to mention that police had continued to
look for him as support for that assertion. See Xiu Xia Lin
v. Mukasey, 534 F.3d at 165-66 & n.3.
The agency further reasonably declined to give weight to
a handwritten letter from Hong Tong Zheng’s church in China
because the author’s identity was not provided. See Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.
2006) (holding that determination of the weight of evidence is
largely a matter of agency discretion). Moreover, the letter
omits any mention that Hong Tong Zheng and his fellow church
members were arrested while attending service at the church.
See Xiu Xia Lin v. Mukasey, 534 F.3d at 166-67 & n.3; see also
Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
applicant’s failure to corroborate his . . . testimony may bear
on credibility, because the absence of corroboration in general
5 makes an applicant unable to rehabilitate testimony that has
already been called into question.”). Hong Tong Zheng did not
provide a compelling explanation for this or any of the other
record inconsistencies. See Majidi v. Gonzales, 430 F.3d at
80 (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (emphasis in original)
(internal quotation marks omitted)).
In sum, given its findings as to demeanor and
inconsistencies in the record, the agency’s adverse credibility
determination is supported by substantial evidence. See
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d
at 167. That determination is dispositive of Hong Tong Zheng’s
claims for asylum and withholding of removal.1 See Paul v.
Gonzales, 444 F.3d 148, 156-57 (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
1 Hong Tong Zheng does not challenge the denial of CAT relief or the BIA’s denial of his motion to remand. 6 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 of Court