18-2983 Weng v. Barr BIA Brennan, IJ A206 463 015 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 27th day of August, two thousand twenty.
PRESENT: RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________
DUN SHENG WENG, Petitioner,
v. 18-2983 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Farah Loftus, Law Office of Farah Loftus, Reseda, CA.
FOR RESPONDENT: David J. Schor, Trial Attorney, Office of Immigration Litigation, Kohsei Ugumori, Senior Litigation Counsel, Civil Division, for Ethan P. Davis, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC.
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 Dun Sheng Weng, a native and citizen of China,
seeks review of a September 11, 2018 decision of the BIA
affirming a September 11, 2017 decision of an Immigration
Judge (“IJ”) denying Weng’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Dun Sheng Weng, No. A 206 463
015 (B.I.A. Sept. 11, 2018), aff’g No. A 206 463 015 (Immig.
Ct. N.Y.C. Sept. 11, 2017). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed both the IJ’s and the BIA’s decisions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
applicable standards of review are well established. See 8
U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
67, 76 (2d Cir. 2018) (reviewing adverse credibility 2 determination for substantial evidence).
As an initial matter, contrary to the government’s
argument, Weng does dispute the agency’s credibility
findings, albeit in a very conclusory way. Nevertheless, we
have reviewed that determination and, as discussed below,
conclude that it is supported by substantial evidence.
“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 applicant . . . , 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, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
. . . to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see
also Hong Fei Gao, 891 F.3d at 76.
3 The agency’s assessment of Weng’s demeanor supports its
adverse credibility determination. “We give particular
deference to credibility determinations that are based on the
adjudicator’s observation of the applicant’s demeanor, in
recognition of the fact that the IJ’s ability to observe the
witness’s demeanor places her in the best position to evaluate
whether apparent problems in the witness’s testimony suggest
a lack of credibility or, rather, can be attributed to an
innocent cause such as difficulty understanding the
question.” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,
113 (2d Cir. 2005). Here, the IJ found that Weng was
“hesitant and unconvincing, as well as unresponsive,” and
that he paused for long periods when asked to elaborate.
Certified Admin. Record (“CAR”) at 35–36. She also found
that he was unclear about the injuries he received in
detention.
In addition to the deference we afford to such
assessments of a petitioner’s demeanor, there is record
support for the agency’s finding. When Weng’s counsel asked
him a series of questions about what happened during his
interrogation, Weng appeared to forget what he had said before
4 and asked his counsel for a reminder of his previous
testimony. The IJ also had to prod Weng for more information,
including about the details of his detention. See Ming Shi
Xue v. BIA, 439 F.3d 111, 122 (2d Cir. 2006) (“[W]here a
petitioner’s testimony was seemingly too vague, we have asked
immigration judges to request additional details before
concluding that the narrative was not credible.”). Regarding
his injuries, Weng first testified on cross-examination that
he endured “much suffering” and affirmed that he was beaten
on his back until he was bleeding out of his mouth, as he had
written in his statement, suggesting severe internal
injuries. CAR at 67. He then appeared to minimize his
injuries, saying that he bled only from the corner of his
mouth and reasoning that because the “bleeding was completely
stopped” by the time he went home, it must not have been
internal bleeding. Id. at 67–68.
Having questioned Weng’s credibility, the agency
reasonably relied on his failure to rehabilitate his
testimony with reliable corroborating evidence. “An
applicant’s failure to corroborate his or her testimony may
bear on credibility, because the absence of corroboration in
5 general makes an applicant unable to rehabilitate testimony
that has already been called into question.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The only evidence
that Weng offered to corroborate his alleged past harm
consisted of letters from his wife and former church friend
in China. The agency did not err in declining to afford
significant weight to those undated documents because neither
author was available for cross-examination, and Weng’s wife
was an interested party. See Y.C. v. Holder, 741 F.3d 324,
334 (2d Cir. 2013) (deferring to agency’s decision to afford
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18-2983 Weng v. Barr BIA Brennan, IJ A206 463 015 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 27th day of August, two thousand twenty.
PRESENT: RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________
DUN SHENG WENG, Petitioner,
v. 18-2983 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Farah Loftus, Law Office of Farah Loftus, Reseda, CA.
FOR RESPONDENT: David J. Schor, Trial Attorney, Office of Immigration Litigation, Kohsei Ugumori, Senior Litigation Counsel, Civil Division, for Ethan P. Davis, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC.
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 Dun Sheng Weng, a native and citizen of China,
seeks review of a September 11, 2018 decision of the BIA
affirming a September 11, 2017 decision of an Immigration
Judge (“IJ”) denying Weng’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Dun Sheng Weng, No. A 206 463
015 (B.I.A. Sept. 11, 2018), aff’g No. A 206 463 015 (Immig.
Ct. N.Y.C. Sept. 11, 2017). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed both the IJ’s and the BIA’s decisions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
applicable standards of review are well established. See 8
U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
67, 76 (2d Cir. 2018) (reviewing adverse credibility 2 determination for substantial evidence).
As an initial matter, contrary to the government’s
argument, Weng does dispute the agency’s credibility
findings, albeit in a very conclusory way. Nevertheless, we
have reviewed that determination and, as discussed below,
conclude that it is supported by substantial evidence.
“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 applicant . . . , 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, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
. . . to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see
also Hong Fei Gao, 891 F.3d at 76.
3 The agency’s assessment of Weng’s demeanor supports its
adverse credibility determination. “We give particular
deference to credibility determinations that are based on the
adjudicator’s observation of the applicant’s demeanor, in
recognition of the fact that the IJ’s ability to observe the
witness’s demeanor places her in the best position to evaluate
whether apparent problems in the witness’s testimony suggest
a lack of credibility or, rather, can be attributed to an
innocent cause such as difficulty understanding the
question.” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,
113 (2d Cir. 2005). Here, the IJ found that Weng was
“hesitant and unconvincing, as well as unresponsive,” and
that he paused for long periods when asked to elaborate.
Certified Admin. Record (“CAR”) at 35–36. She also found
that he was unclear about the injuries he received in
detention.
In addition to the deference we afford to such
assessments of a petitioner’s demeanor, there is record
support for the agency’s finding. When Weng’s counsel asked
him a series of questions about what happened during his
interrogation, Weng appeared to forget what he had said before
4 and asked his counsel for a reminder of his previous
testimony. The IJ also had to prod Weng for more information,
including about the details of his detention. See Ming Shi
Xue v. BIA, 439 F.3d 111, 122 (2d Cir. 2006) (“[W]here a
petitioner’s testimony was seemingly too vague, we have asked
immigration judges to request additional details before
concluding that the narrative was not credible.”). Regarding
his injuries, Weng first testified on cross-examination that
he endured “much suffering” and affirmed that he was beaten
on his back until he was bleeding out of his mouth, as he had
written in his statement, suggesting severe internal
injuries. CAR at 67. He then appeared to minimize his
injuries, saying that he bled only from the corner of his
mouth and reasoning that because the “bleeding was completely
stopped” by the time he went home, it must not have been
internal bleeding. Id. at 67–68.
Having questioned Weng’s credibility, the agency
reasonably relied on his failure to rehabilitate his
testimony with reliable corroborating evidence. “An
applicant’s failure to corroborate his or her testimony may
bear on credibility, because the absence of corroboration in
5 general makes an applicant unable to rehabilitate testimony
that has already been called into question.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The only evidence
that Weng offered to corroborate his alleged past harm
consisted of letters from his wife and former church friend
in China. The agency did not err in declining to afford
significant weight to those undated documents because neither
author was available for cross-examination, and Weng’s wife
was an interested party. See Y.C. v. Holder, 741 F.3d 324,
334 (2d Cir. 2013) (deferring to agency’s decision to afford
little weight to spouse’s letter from China); see also In re
H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)
(letters from applicant’s friends and family were
insufficient to provide substantial support for applicant’s
claims because they were from interested witnesses not
subject to cross-examination), overruled on other grounds by
Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).
Further, the letters did not corroborate any details of the
beating Weng allegedly endured or his resulting injuries,
stating only that the beating was severe and that his injuries
were serious. Additionally, Weng failed to provide a letter
6 from his father to corroborate that his father paid a fine to
free Weng from detention.
Accordingly, given the agency’s assessment of Weng’s
demeanor, to which we defer, and the lack of reliable or
detailed corroboration, we find that the agency’s adverse
credibility determination is supported by substantial
evidence. See Xiu Xia Lin, 534 F.3d at 165–66. That
determination is dispositive of Weng’s petition because all
three forms of relief he seeks – asylum, withholding of
removal, and CAT relief – are based on the same discredited
factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–
57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court