Zheng v. Barr BIA Leeds, IJ A087 798 604

17-4008
Zheng v. Barr
BIA
Leeds, IJ
A087 798 604
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 1
for the Second Circuit, held at the Thurgood Marshall United 2
States Courthouse, 40 Foley Square, in the City of New York, 3
on the 17
th
day of January, two thousand twenty. 4
5
PRESENT: 6
BARRINGTON D. PARKER, 7
MICHAEL H. PARK, 8
Circuit Judges.
1
9
_____________________________________ 10
11
ZHE HUI ZHENG, 12
Petitioner, 13
14
v. 17-4008 15
NAC 16
WILLIAM P. BARR, UNITED STATES 17
ATTORNEY GENERAL, 18
Respondent. 19
_____________________________________ 20
21
FOR PETITIONER: Adedayo O. Idowu, New York, NY. 22
23
FOR RESPONDENT: Joseph H. Hunt, Assistant 24
Attorney General; Linda S. 25
Wernery, Assistant Director; 26
Gerard M. Alexander, Trial 27
Attorney, Office of Immigration 28

1
Judge Christopher F. Droney, who was originally assigned to the panel, retired from the Court, effective
January 1, 2020, prior to the resolution of this case. The remaining two members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone,
140 F.3d 457, 458–59 (2d Cir. 1998).

2

Litigation, United States 1
Department of Justice, Washington, 2
DC. 3
UPON DUE CONSIDERATION of this petition for review of a 4
Board of Immigration Appeals (“BIA”) decision, it is hereby 5
ORDERED, ADJUDGED, AND DECREED that the petition for review 6
is DENIED. 7
Petitioner Zhe Hui Zheng, a native and citizen of the 8
People’s Republic of China, seeks review of a December 1, 9
2017, decision of the BIA affirming an April 5, 2017, decision 10
of an Immigration Judge (“IJ”) denying his application for 11
asylum, withholding of removal, and relief under the 12
Convention Against Torture (“CAT”). In re Zhe Hui Zheng, No. 13
A087 798 604 (B.I.A. Dec. 1, 2017), aff’g No. A087 798 604 14
(Immig. Ct. N.Y. City Apr. 5, 2017). We assume the parties’ 15
familiarity with the underlying facts and procedural history 16
in this case. 17
Under the circumstances of this case, we have reviewed 18
the IJ’s decision as supplemented by the BIA. See Yan Chen 19
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable 20
standards of review are well established. See 8 U.S.C. 21
§ 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 22
Cir. 2018). 23
“Considering the totality of the circumstances, and all 24

3

relevant factors, a trier of fact may base a credibility 1
determination on the demeanor, candor, or responsiveness of 2
the applicant . . . , the consistency between the applicant’s 3
or witness’s written and oral statements . . . , the internal 4
consistency of each such statement, [and] the consistency of 5
such statements with other evidence of record . . . without 6
regard to whether an inconsistency, inaccuracy, or falsehood 7
goes to the heart of the applicant’s claim, or any other 8
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer 9
. . . to an IJ’s credibility determination unless, from the 10
totality of the circumstances, it is plain that no reasonable 11
fact-finder could make such an adverse credibility ruling.” 12
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); 13
accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence 14
supports the adverse credibility determination. 15
We defer to the IJ’s demeanor finding, which is supported 16
by the record. See Jin Chen v. U.S. Dep’t of Justice, 426 17
F.3d 104, 113 (2d Cir. 2005). The IJ noted that Zheng’s 18
responses on cross examination were inaudible and that he 19
paused for long periods before answering. The record 20
supports this finding as it reflects that the IJ instructed 21
Zheng multiple times to speak louder and warned him that his 22
whispers and pauses might call for a negative demeanor 23

4

finding. Moreover, as discussed below, “[w]e can be still 1
more confident in our review of observations about an 2
applicant’s demeanor where . . . they are supported by 3
specific examples of inconsistent testimony.” Li Hua Lin v. 4
U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). 5
An inconsistency among Zheng’s statements about his 6
father’s presence in China at the time of Zheng’s alleged 7
arrest and his subsequent admission that he and his mother 8
made false statements provide substantial evidence for the 9
adverse credibility determination. See Siewe v. Gonzales, 10
480 F.3d 160, 170 (2d Cir. 2007)
(“[A] single false document 11
or a single instance of false testimony may (if attributable 12
to the petitioner) infect the balance of the alien’s 13
uncorroborated or unauthenticated evidence.”). Zheng’s 14
application, his mother’s letter, and his initial testimony 15
all asserted that Zheng’s father was in China at the time of 16
Zheng’s arrest and was involved in paying Zheng’s bail and 17
taking him to the hospital after his detention. When asked 18
at the hearing, he asserted that his father had never lived 19
in the United States. However, when presented with evidence 20
that his father had lived in the United States, Zheng changed 21
his testimony and conceded that his father had been in the 22
United States at the time of his arrest. The IJ was not 23

5

compelled to credit Zheng’s evolving explanations for his 1
false statements, i.e., that he was nervous, worried that his 2
father’s undocumented status would affect his asylum claim, 3
missed his father, and wanted to protect his father. See 4
Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 5
petitioner must do more than offer a plausible explanation 6
for his inconsistent statements to secure relief; he must 7
demonstrate that a reasonable fact-finder would be compelled 8
to credit his testimony.” (internal quotations omitted)); see 9
also Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009) 10
(“We again reject the notion that a petitioner’s claim that 11
she was nervous and distracted during the credible fear 12
interview automatically undermines or negates its reliability 13
as a source of her statements.”). 14
Having questioned Zheng’s credibility, the agency 15
reasonably relied on his failure to rehabilitate his 16
testimony with reliable corroborating evidence. “An 17
applicant’s failure to corroborate his or her testimony may 18
bear on credibility, because the absence of corroboration in 19
general makes an applicant unable to rehabilitate testimony 20
that has already been called into question.” Biao Yang v. 21
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). “We defer to the 22
agency’s determination of the weight afforded to an alien’s 23

6

documentary evidence.” Y.C. v. Holder, 741 F.3d 324, 332 (2d 1
Cir. 2013). The agency was not required to credit Zheng’s 2
documentary evidence because his mother’s letter contained a 3
false statement, she was an interested witness not subject to 4
cross-examination, and the authenticity of that letter and 5
the other documents turned on Zheng’s credibility. Id.; see 6
also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 7
2010) (finding that unsworn letters from the alien’s friends 8
and family did not provide substantial support because they 9
were from interested witnesses not subject to cross-10
examination), rev’d on other grounds, Hui Lin Huang v. Holder, 11
677 F.3d 130 (2d Cir. 2012). 12
Given the demeanor finding, the inconsistencies and false 13
statements, and the lack of reliable corroboration, the 14
adverse credibility determination is supported by substantial 15
evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 16
534 F.3d at 167; Biao Yang, 496 F.3d at 273. The adverse 17
credibility determination is dispositive of asylum, 18
withholding of removal, and CAT relief because all three forms 19
of relief were based on the same discredited factual 20
predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 21
Cir. 2006). 22
For the foregoing reasons, the petition for review is 23

7

DENIED. All pending motions and applications are DENIED and 1
stays VACATED. 2
FOR THE COURT: 3
Catherine O’Hagan Wolfe, 4
Clerk of Court 5
6