Jinying Zheng v. Holder

SUMMARY ORDER Petitioner Jinying Zheng, a native and citizen of China, seeks review of an April 23, 2013, decision of the BIA affirming a July 27, 2011, decision of an Immigration Judge (“U”) denying Zheng’s application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In re Jinying Zheng, No. A097 484 986 (B.I.A. April 23, 2013), aff'g No. A097 484 986 (Immig.Ct.N.Y.City July 27, 2011). 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. 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 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Zheng applied for asylum in 2003, and so the REAL ID Act does not apply in this case. REAL ID Act of 2005, Div. B of Pub.L. No. 109-13, 119 Stat. 302, 303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); Matter of S-B- 24 I. & N. Dec. 42, 45 (BIA 2006). A pre-REAL ID Act adverse credibility determination must be based on “specific, cogent” reasons that bear a “legitimate nexus” to the finding. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003), superseded by the REAL ID Act as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163 (2d Cir.2008). Although our review of an IJ’s denial of asylum and withholding of removal on credibility grounds is “highly deferential,” Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005), “an IJ’s credibility determination will not satisfy the substantial evidence standard when it is based entirely on flawed reasoning, bald speculation, or conjecture,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir.2006) (citing Secaida-Rosales, 331 F.3d at 307, 312). Here, the adverse credibility determination is supported by substantial evidence. An asylum applicant is “not required to list every incident of persecution” in his application. Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006). But Zheng omitted a major one: interrogations and beatings at the hands of family planning officials. He described his detention in his asylum application, but said nothing about physical abuse. At his first merits hearing, the government attorney asked a series of questions about Zheng’s detention: the room where he was held (including the color of the walls — white); the furniture (a bed); whether he was handcuffed (no); and whether he was fed (a “regular meal” of rice and a vegetable). Again, Zheng said nothing about physical abuse. It was only when Zheng appeared before the IJ for a third time that he claimed to have been interrogated and beaten for resisting China’s family planning policy. Zheng’s omission of the interrogations and beatings bore a “legitimate nexus” to his claim of persecution based on those events. Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005). Indeed, they are one and the same. Zheng’s challenge to the adverse credibility determination is as follows. Pre-REAL ID case law precluded an adverse credibility finding based on details “collateral or ancillary” to a claim. Secaida-Rosales, 331 F.3d at 308. Prior to Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007), Zheng was per se eligible for asylum based on his wife’s forced abortion and sterilization. The in *672 terrogations and beatings were collateral and ancillary to that claim. So, argues Zheng, the agency should have credited his explanation: that his attorney advised him not to describe these painful episodes. In Shi Liang Lin, we held that the BIA erred in interpreting the Immigration and Nationality Act (“INA”) to give per se asylum eligibility to the spouses of those who had been forcibly aborted or sterilized. 494 F.3d at 309-10. But persecution based on resistance to a coercive population control program has been a basis for asylum relief since the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) was enacted in 1996. 8 U.S.C. § 1101(a)(42)(B). Our decision in Shi Liang Lin did not alter that. As a consequence, at his first merits hearing, Zheng’s mistreatment by family planning cadres was not “collateral or ancillary” to his claim, and the agency was not compelled to credit Zheng’s (and his attorney’ s) explanation that those episodes were “secondary” concerns. Zheng did not assert a well-founded fear of future persecution under the family planning program. 8 C.F.R. § 1208.13(b). So, Zheng failed to meet his burden of proof for asylum, and he necessarily failed to meet the higher burden required to succeed on claims for withholding of removal or' CAT relief insofar as those claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). We need not consider Zheng’s challenge to the agency’s alternative basis for denying relief on family planning grounds. Zheng does not challenge the agency’s denial of his illegal departure claim. For the foregoing reasons, the petition for review is DENIED.