Zhantiao Cheng v. Sessions

16-3506 Zhantiao Cheng v. Sessions BIA Schoppert, IJ A205 614 660 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 11th day of June, two thousand eighteen. [5] 6 PRESENT: 7 JOHN M. WALKER, JR., 8 GUIDO CALABRESI, 9 JOSÉ A. CABRANES, 10 Circuit Judges. 11 _____________________________________ [12] 13 ZHANTIAO CHENG, 14 Petitioner, [15] 16 v. 16-3506 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Gary J. Yerman, New York, NY. [24] 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Russell J.E. 27 Verby, Senior Litigation Counsel; 28 Kristin Moresi, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 Justice, Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Zhantiao Cheng, a native and citizen of the 6 People’s Republic of China, seeks review of a September 30, 7 2016, decision of the BIA affirming a July 27, 2015, decision 8 of an Immigration Judge (“IJ”) denying Zhantiao Cheng’s 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Zhantiao 11 Cheng, No. A 205 614 660 (B.I.A. Sept. 30, 2016), aff’g No. A 12 205 614 660 (Immig. Ct. N.Y. City July 27, 2015). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 only the IJ’s eligibility determination explicitly affirmed 17 by the BIA, not the IJ’s alternative discretionary denial of 18 asylum. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 19 520, 522 (2d Cir. 2005). The standards of review are well 20 established. See 8 U.S.C. § 1252 (b)(4)(B); See Y.C. v. 21 Holder, 741 F.3d 324, 332-33 (2d Cir. 2013). [2] 1 Zhantiao Cheng alleged that he had a well-founded fear 2 of future persecution based on his participation in the China 3 Democracy Party (“CDP”) in the United States. He had the 4 burden to show that the claim was subjectively credible and 5 that the fear was objectively reasonable. Ramsameachire v. 6 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). An applicant 7 whose claim is based solely on events or activities in the 8 United States must show that the Chinese government is “aware 9 of his activities or likely to become aware of his 10 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135 , 143 11 (2d Cir. 2008). These types of claims of future persecution 12 require careful analysis because they are “easy to 13 manufacture.” Y.C., 741 F.3d at 338 . Ultimately, Zhantiao 14 Cheng was required to show that he was credible and that the 15 Chinese government was aware or likely to become aware of his 16 activities. We find no error in the agency’s conclusions 17 that Zhantiao Cheng failed in both respects. 18 First, the agency reasonably concluded that Zhantiao 19 Cheng’s credibility was undermined by omissions and 20 inconsistencies. The agency may, “[c]onsidering the totality 21 of the circumstances,” base an adverse credibility [3] 1 determination on inconsistencies or omissions in an 2 applicant’s oral and written statements and other record 3 evidence, regardless of whether any such discrepancies “go[] 4 to the heart of the applicant’s claim.” 8 U.S.C. § 5 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162 , 6 163-64, 166-67 (2d Cir. 2008). “We defer . . . to an IJ’s 7 credibility determination unless . . . it is plain that no 8 reasonable fact-finder could make such an adverse credibility 9 ruling.” Xiu Xia Lin, 534 F.3d at 167 . 10 The agency reasonably relied on Zhantiao Cheng’s omission 11 of his arrest on his original asylum application and 12 inconsistencies in his testimony about his arrest and guilty 13 plea. See 8 U.S.C. § 1158 (b)(1)(B)(iii); Xiu Xia Lin, 534 14 F.3d at 166-67 & n.3 (holding that “[a]n inconsistency and an 15 omission are . . . functionally equivalent” for credibility 16 purposes). Zhantiao Cheng’s omission of his arrest from his 17 asylum application cast doubt on his credibility and his lack 18 of straightforward answers about the charge and plea further 19 undermined his credibility. See Siewe v. Gonzales, 480 F.3d 20 160, 170 (2d Cir. 2007) (“[A] single false document or a 21 single instance of false testimony may (if attributable to [4] 1 the petitioner) infect the balance of the alien’s 2 uncorroborated or unauthenticated evidence.”). 3 The IJ was not required to accept Zhantiao Cheng’s 4 explanation that he was nervous when he signed his 5 application. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d 6 Cir. 2005) (“A petitioner must do more than offer a plausible 7 explanation for his inconsistent statements to secure relief; 8 he must demonstrate that a reasonable fact-finder would be 9 compelled to credit his testimony.” (quotation marks and 10 citation omitted)). Although Zhantiao Cheng argues that he 11 did not understand the term “arrest” and testified 12 consistently, the record supports the IJ’s conclusions given 13 Zhantiao Cheng’s seeming understanding that he had been 14 charged with a crime. See Siewe, 480 F.3d at 167 (“Where 15 there are two permissible views of the evidence, the 16 factfinder’s choice between them cannot be clearly erroneous. 17 . . . Rather, a reviewing court must defer to that choice so 18 long as the deductions are not illogical or implausible.” 19 (citations and quotation marks omitted)). 20 Second, Zhantiao Cheng did not otherwise meet his burden 21 of establishing that Chinese authorities were aware or likely [5] 1 to become aware of his political activities. See Hongsheng 2 Leng, 528 F.3d at 143 . The IJ declined to credit a letter 3 from Zhantiao Cheng’s mother stating that Chinese police were 4 searching for him. Zhantiao Cheng has waived any challenge 5 to this determination. See Yueqing Zhang v. Gonzales, 426 6 F.3d 540 , 545 n.7 (2d Cir. 2005) (providing that issues not 7 raised in an opening brief are waived). Moreover, the IJ did 8 not err in giving the letter little weight, see Y.C., 741 9 F.3d at 334 (deferring to IJ’s decision not to credit letter 10 from spouse in China). Further, Zhantiao Cheng’s claim that 11 articles he published online about the CDP would be discovered 12 by Chinese authorities, absent more concrete evidence, is 13 “pure speculation.” Id. Zhantiao Cheng’s failure to meet 14 his burden for asylum also precludes him from meeting the 15 higher standards for withholding of removal and CAT relief. 16 Id. at 335. 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our review, any stay of removal 19 that the Court previously granted in this petition is VACATED, 20 and any pending motion for a stay of removal in this petition 21 is DISMISSED as moot. Any pending request for oral argument [6] 1 in this petition is DENIED in accordance with Federal Rule of 2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 3 34.1(b). 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court