         11-2086-ag
         Zheng v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A089 198 271
                             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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 6th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                         ROGER J. MINER,
 8                         ROBERT A. KATZMANN,
 9                         BARRINGTON D. PARKER,
10                              Circuit Judges.
11
12       _______________________________________
13
14       JIAN CAN ZHENG,
15                Petitioner,
16
17                         v.                                   11-2086-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22
23       ______________________________________
24
25       FOR PETITIONER:                Farah Loftus, Law Office of Farah
26                                      Loftus, Century City, CA.
27
28       FOR RESPONDENT:                Tony West, Assistant Attorney
29                                      General; Ada Bosque, Senior
30                                      Litigation Counsel; Jonathan F.
31                                      Potter, Attorney, Office of
 1                          Immigration Litigation, Civil
 2                          Division, United States Department
 3                          of Justice, Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED.

 9       Petitioner Jian Can Zheng, a native and citizen of

10   China, seeks review of a April 27, 2011, order of the BIA

11   affirming the July 1, 2009, decision of Immigration Judge

12   (“IJ”) Thomas J. Mulligan denying his application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).   In re Jian Can Zheng,

15   No. A089 198 271 (B.I.A. Apr. 27, 2011), aff’g No. A089 198

16   271 (Immigr. Ct. N.Y. City July 1, 2009).     We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history of this case.

19       Under the circumstances of this case, we review the

20   IJ’s decision as supplemented by the BIA.     See Yan Chen v.

21   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

22   standards of review are well-established.     See 8 U.S.C.

23   § 1252(b)(4)(B) (2006); Yanqin Weng v. Holder, 562 F.3d 510,

24   513 (2d Cir. 2009).

25       Zheng challenges both the agency’s adverse credibility


                                  2
 1   determination and its alternative finding that the harm he

 2   suffered did not rise to the level of persecution.

 3   Substantial evidence supports the agency’s adverse

 4   credibility determination. See Yanquin Weng, 562 F.3d at

 5   513.    For applications, such as this one, governed by the

 6   REAL ID Act of 2005, the agency may, considering the

 7   totality of the circumstances, base a credibility finding on

 8   an asylum applicant’s demeanor, the plausibility of his

 9   account, and inconsistencies in his statements, without

10   regard to whether they go “to the heart of the applicant’s

11   claim.”    8 U.S.C. § 1158(b)(1)(B)(iii) (2006); see also

12   Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).

13          Here, the IJ relied on Zheng’s demeanor to find him not

14   credible, noting that he failed to answer “simple and basic

15   questions,” was “incredibly nervous,” paused for long

16   periods at several points in his testimony, and, overall,

17   gave “an extremely poor impression that he had memorized a

18   script.”    Additionally, the IJ found that Zheng could not

19   provide basic details regarding the event that led to his

20   altercation with Chinese officials and his wife’s alleged

21   forced abortion.    Because the IJ was in the best position to

22   observe Zheng’s manner while testifying, and identified


                                    3
 1   specific examples of problematic testimony, we accord his

 2   demeanor finding particular deference.     See Shu Wen Sun v.

 3   BIA, 510 F.3d 377, 380-81 (2d Cir. 2007) (per curiam); Li

 4   Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 109 (2d Cir.

 5   2006).

 6       Moreover, as the BIA found, even if credible, Zheng did

 7   not demonstrate harm rising to the level of persecution

 8   because he was not eligible for relief based on the harm

 9   suffered by his wife, Shi Liang Lin v. U.S. Dep’t of

10   Justice, 494 F.3d 296, 309 (2d Cir. 2007) (en banc), and the

11   single incident with family planning officials in which he

12   was punched several times in the chest did not rise to the

13   level of persecution, see Jian Qui Liu v. Holder, 632 F.3d

14   820, 822 (2d Cir. 2011) (per curiam) (holding that a minor

15   beating by family planning officials who did not have “any

16   intention of arresting or detaining” petitioner did not

17   constitute persecution where no lasting physical injury

18   resulted).     Contrary to Zheng’s assertion, because his past

19   harm did not rise to the level of persecution, he is not

20   entitled to a presumption of a well-founded fear of

21   persecution.     See 8 C.F.R. § 1208.13(b)(1) (2001).

22   Furthermore, because Zheng was unable to show the objective


                                     4
 1   likelihood of persecution needed to make out an asylum

 2   claim, he was necessarily unable to meet the higher standard

 3   required to succeed on a claim for withholding of removal.

 4   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). We

 5   do not reach Zheng’s claim for CAT relief as he did not

 6   exhaust it before the BIA.    See Foster v. INS, 376 F.3d 75,

 7   78 (2d Cir. 2004).

 8       For the foregoing reasons, the petition for review is

 9   DENIED.   As we have completed our review, any stay of

10   removal that the Court previously granted in this petition

11   is VACATED, and any pending motion for a stay of removal in

12   this petition is DENIED as moot.    Any pending request for

13   oral argument in this petition is DENIED in accordance with

14   Federal Rule of Appellate Procedure 34(a)(2) and Second

15   Circuit Local Rule 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18




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