Weng v. Sessions

Opinion

16-2503 Weng v. Sessions BIA

Balasquide, IJ

A087 978 578

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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 26th day of March, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 QI QING WENG, 14 Petitioner, 15 16 v. 16-2503 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jay Ho Lee, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Justin R. Markel, 27 Senior Litigation Counsel; Brooke M. 28 Maurer, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 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 is 4 DENIED. 5 Petitioner Qi Qing Weng, a native and citizen of the 6 People’s Republic of China, seeks review of a June 20, 2016, 7 decision of the BIA affirming a January 5, 2015, decision of 8 an Immigration Judge (“IJ”) denying Weng’s application for 9 asylum, withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Qi Qing Weng, No. A 087 978 578 11 (B.I.A. June 20, 2016), aff’g No. A 087 978 578 (Immig. Ct. N.Y. 12 City Jan. 5, 2015). We assume the parties’ familiarity with 13 the underlying facts and procedural history in this case. 14 Under the circumstances of this case, we have reviewed both 15 the BIA’s and IJ’s decisions. Wangchuck v. Dep’t of Homeland 16 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The standards of review 17 are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia 18 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 19 The agency may, “[c]onsidering the totality of the 20 circumstances,” base an adverse “credibility determination on 21 the demeanor, candor, or responsiveness of the applicant” or 22 on inconsistencies or omissions in an applicant’s oral and 23 written statements and other record evidence, regardless of

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1 whether any such discrepancies “go[] to the heart of the 2 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 3 Lin, 534 F.3d at 163-64, 166-67. “We defer . . . to an IJ’s 4 credibility determination unless . . . it is plain that no 5 reasonable fact-finder could make such an adverse credibility 6 ruling.” Xiu Xia Lin, 534 F.3d at 167. The adverse 7 credibility determination is supported by substantial 8 evidence. 9 We defer to the IJ’s conclusion that Weng’s demeanor 10 undermined his credibility. Jin Chen v. U.S. Dep’t of Justice, 11 426 F.3d 104, 113 (2d Cir. 2005). Moreover, the record supports 12 the IJ’s conclusion that Weng was non-responsive and 13 inconsistent when asked for details of his proselytizing, and 14 when and why he applied for asylum. See Li Hua Lin v. U.S. Dep’t 15 of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still 16 more confident in our review of observations about an 17 applicant’s demeanor where, as here, they are supported by 18 specific examples of inconsistent testimony.”). Nor is Weng’s 19 explanation for his silences and inability to recall details 20 compelling because it did not resolve why he was able to answer 21 other questions involving his religious practice. See Majidi 22 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“[A] petitioner 23 must do more than offer a plausible explanation for his

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1 inconsistent statements to secure relief; he must demonstrate 2 that a reasonable fact-finder would be compelled to credit his 3 testimony.” (quotation marks omitted)). 4 To the extent Weng raises an issue regarding his 5 competency, we discern no error in the agency’s conclusion that 6 he was competent. He was counseled, he submitted no medical 7 evidence, and he testified that he understood his baptism 8 classes. Although the IJ did not explicitly discuss Weng’s 9 level of education, his lack of formal education would not 10 explain why he had difficulty answering questions about his own 11 practice of Christianity. 12 In addition to Weng’s lack of responsiveness, his 13 inconsistencies about when and why he applied for asylum 14 undermined the sincerity of his claim. Weng initially 15 testified that he applied for asylum because he was afraid of 16 persecution as a Christian in China, but later acknowledged that 17 he decided to apply for asylum before ever attending a church. 18 This suggests that Weng manufactured his asylum claim and casts 19 the sincerity of his belief into doubt. See Y.C. v. Holder, 20 741 F.3d 324, 332 (2d. Cir. 2013) (“To establish eligibility 21 for asylum, an applicant must show that he or she . . . has a 22 well-founded fear of future persecution, on account of . . . 23 religion.”); id. at 338(noting that particular asylum claims

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1 arising from actions taken in the United States “may be 2 especially easy to manufacture”); see also 8 U.S.C. § 1101 3 (a)(42). 4 Overall, the inconsistencies and lack of responsive 5 testimony provide substantial evidence for the adverse 6 credibility determination, particularly as they undermine the 7 sincerity of Weng’s adoption of Christianity. See Xiu Xia Lin, 8 534 F.3d at 167. Because Weng’s asylum, withholding of 9 removal, and CAT claims were all based on the same factual 10 predicate, the adverse credibility determination is 11 dispositive. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 12 2006). Accordingly, we do not reach the agency’s alternative 13 rationale that Weng failed to show an objectively reasonable 14 fear of future persecution. See INS v. Bagamasbad, 429 U.S. 15 24, 25 (1976) (“As a general rule courts and agencies are not 16 required to make findings on issues the decision of which is 17 unnecessary to the results they reach.”). 18 For the foregoing reasons, the petition for review is 19 DENIED.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk