16-4256 Weng v. Whitaker BIA Loprest, IJ A205 907 154 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 28th day of December, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 LING FENG WENG, 14 Petitioner, 15 16 v. 16-4256 17 NAC 18 MATTHEW G. WHITAKER, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael Brown, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Carl Mcintyre, 27 Assistant Director; Margaret A. 28 O’Donnell, Trial Attorney, Office 29 of 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
4 is DENIED.
5 Petitioner Ling Feng Weng, a native and citizen of the
6 People’s Republic of China, seeks review of a December 2,
7 2016, decision of the BIA affirming a January 27, 2016,
8 decision of an Immigration Judge (“IJ”) denying Weng’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Ling
11 Feng Weng, No. A 205 907 154 (B.I.A. Dec. 2, 2016), aff’g No.
12 A 205 907 154 (Immig. Ct. N.Y. City Jan. 27, 2016). 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 review both the
16 BIA’s and IJ’s decisions, but we do not reach the IJ’s
17 alternative burden finding because the BIA did not rely on
18 it. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.
19 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
20 522 (2d Cir. 2005). The applicable standards of review are
21 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
22 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). In making
2 1 a credibility determination, the agency must “[c]onsider[]
2 the totality of the circumstances” and may base its
3 determination on the applicant’s “demeanor, candor, or
4 responsiveness, . . . the inherent plausibility of the
5 applicant’s . . . account,” inconsistencies or omissions in
6 the applicant’s statements or between his statements and
7 other evidence “without regard to whether an inconsistency,
8 inaccuracy, or falsehood goes to the heart of the applicant’s
9 claim, or any other relevant factor.” 8 U.S.C.
10 § 1158(b)(1)(B)(iii);accord Xiu Xia Lin, 534 F.3d at 163-64,
11 166-67. “We defer . . . to an IJ’s credibility determination
12 unless, from the totality of the circumstances, it is plain
13 that no reasonable fact-finder could make such an adverse
14 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. We
15 conclude that there is substantial evidence for the adverse
16 credibility determination.
17 Omissions & Inconsistencies
18 The agency reasonably relied on omissions and
19 inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong
20 Fei Gao v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018)
21 (holding that IJs may rely on omissions and
22 inconsistencies, including non-material ones, but noting
3 1 that omissions and inconsistencies “that ha[ve] no tendency
2 to suggest a petitioner fabricated his or her claim will
3 not support an adverse credibility determination”); Xiu Xia
4 Lin, 534 F.3d at 166-67 & n.3 (explaining that certain
5 omissions are “functionally equivalent” to
6 inconsistencies). Weng alleged in his asylum application
7 that family planning officials raided his home, destroyed
8 his property, arrested his father, and threatened him and
9 his wife with sterilization because his wife failed to
10 attend a scheduled pregnancy checkup, and that his mother
11 had to pay a fine to obtain his father’s release; but he
12 failed to mention these facts at his hearing. See Xiu Xia
13 Lin, 534 F.3d at 166n.3. The agency reasonably concluded
14 that the omission tended to show that Weng could not
15 remember what was written in his statement. See Siewe v.
16 Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (“The
17 speculation that inheres in inference is not ‘bald’ if the
18 inference is made available to the factfinder by record
19 facts, or even a single fact, viewed in the light of common
20 sense and ordinary experience. So long as an inferential
21 leap is tethered to the evidentiary record, we will accord
22 deference to the finding.”). Weng’s argument that he did
4 1 not testify about his father’s arrest because he was not
2 asked about it is unavailing because it was his burden to
3 prove eligibility for relief and he was asked what evidence
4 he had that the government wanted to sterilize him. See
5 8 U.S.C. § 1158(b)(1)(B)(i) (burden is on alien to
6 establish asylum eligibility), (iii) (“[t]here is no
7 presumption of credibility”); 8 C.F.R. § 1208.13(a).
8 The agency also reasonably relied on internal
9 inconsistencies in Weng’s testimony and inconsistencies
10 between the testimony and the documentary evidence.
11 8 U.S.C. § 1158(b)(1)(B)(iii). Weng stated that his wife
12 was forced to have an abortion in 2011, but his wife’s
13 letter stated the abortion occurred in 2012. Further
14 undermining the allegation of a forced abortion was Weng’s
15 mistaken, and then corrected, testimony that the abortion
16 certificate he submitted reflected his wife’s
17 sterilization. Nor did the agency err in relying on more
18 tangential inconsistencies. See Xiu Xia Lin, 534 F.3d at
19 167 (holding that “IJ may rely on any inconsistency or
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16-4256 Weng v. Whitaker BIA Loprest, IJ A205 907 154 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 28th day of December, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 LING FENG WENG, 14 Petitioner, 15 16 v. 16-4256 17 NAC 18 MATTHEW G. WHITAKER, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael Brown, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Carl Mcintyre, 27 Assistant Director; Margaret A. 28 O’Donnell, Trial Attorney, Office 29 of 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
4 is DENIED.
5 Petitioner Ling Feng Weng, a native and citizen of the
6 People’s Republic of China, seeks review of a December 2,
7 2016, decision of the BIA affirming a January 27, 2016,
8 decision of an Immigration Judge (“IJ”) denying Weng’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Ling
11 Feng Weng, No. A 205 907 154 (B.I.A. Dec. 2, 2016), aff’g No.
12 A 205 907 154 (Immig. Ct. N.Y. City Jan. 27, 2016). 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 review both the
16 BIA’s and IJ’s decisions, but we do not reach the IJ’s
17 alternative burden finding because the BIA did not rely on
18 it. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.
19 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
20 522 (2d Cir. 2005). The applicable standards of review are
21 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
22 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). In making
2 1 a credibility determination, the agency must “[c]onsider[]
2 the totality of the circumstances” and may base its
3 determination on the applicant’s “demeanor, candor, or
4 responsiveness, . . . the inherent plausibility of the
5 applicant’s . . . account,” inconsistencies or omissions in
6 the applicant’s statements or between his statements and
7 other evidence “without regard to whether an inconsistency,
8 inaccuracy, or falsehood goes to the heart of the applicant’s
9 claim, or any other relevant factor.” 8 U.S.C.
10 § 1158(b)(1)(B)(iii);accord Xiu Xia Lin, 534 F.3d at 163-64,
11 166-67. “We defer . . . to an IJ’s credibility determination
12 unless, from the totality of the circumstances, it is plain
13 that no reasonable fact-finder could make such an adverse
14 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. We
15 conclude that there is substantial evidence for the adverse
16 credibility determination.
17 Omissions & Inconsistencies
18 The agency reasonably relied on omissions and
19 inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong
20 Fei Gao v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018)
21 (holding that IJs may rely on omissions and
22 inconsistencies, including non-material ones, but noting
3 1 that omissions and inconsistencies “that ha[ve] no tendency
2 to suggest a petitioner fabricated his or her claim will
3 not support an adverse credibility determination”); Xiu Xia
4 Lin, 534 F.3d at 166-67 & n.3 (explaining that certain
5 omissions are “functionally equivalent” to
6 inconsistencies). Weng alleged in his asylum application
7 that family planning officials raided his home, destroyed
8 his property, arrested his father, and threatened him and
9 his wife with sterilization because his wife failed to
10 attend a scheduled pregnancy checkup, and that his mother
11 had to pay a fine to obtain his father’s release; but he
12 failed to mention these facts at his hearing. See Xiu Xia
13 Lin, 534 F.3d at 166n.3. The agency reasonably concluded
14 that the omission tended to show that Weng could not
15 remember what was written in his statement. See Siewe v.
16 Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (“The
17 speculation that inheres in inference is not ‘bald’ if the
18 inference is made available to the factfinder by record
19 facts, or even a single fact, viewed in the light of common
20 sense and ordinary experience. So long as an inferential
21 leap is tethered to the evidentiary record, we will accord
22 deference to the finding.”). Weng’s argument that he did
4 1 not testify about his father’s arrest because he was not
2 asked about it is unavailing because it was his burden to
3 prove eligibility for relief and he was asked what evidence
4 he had that the government wanted to sterilize him. See
5 8 U.S.C. § 1158(b)(1)(B)(i) (burden is on alien to
6 establish asylum eligibility), (iii) (“[t]here is no
7 presumption of credibility”); 8 C.F.R. § 1208.13(a).
8 The agency also reasonably relied on internal
9 inconsistencies in Weng’s testimony and inconsistencies
10 between the testimony and the documentary evidence.
11 8 U.S.C. § 1158(b)(1)(B)(iii). Weng stated that his wife
12 was forced to have an abortion in 2011, but his wife’s
13 letter stated the abortion occurred in 2012. Further
14 undermining the allegation of a forced abortion was Weng’s
15 mistaken, and then corrected, testimony that the abortion
16 certificate he submitted reflected his wife’s
17 sterilization. Nor did the agency err in relying on more
18 tangential inconsistencies. See Xiu Xia Lin, 534 F.3d at
19 167 (holding that “IJ may rely on any inconsistency or
20 omission in making an adverse credibility determination as
21 long as the ‘totality of the circumstances’” supports the
22 credibility ruling)(emphasis in original)); see also Hong
5 1 Fei Gao, 891 F.3d at 77-79 (reviewing standards for
2 evaluating omissions and inconsistencies). Weng testified
3 that he first violated China’s family planning policies
4 because his son was born before he was married, but the
5 marriage and birth certificates place the birth after the
6 marriage. And Weng’s testimony about the time he spent in
7 hiding was inconsistent because he testified to two years
8 at one point and one month at another. The IJ was not
9 required to credit Weng’s explanation that he misheard the
10 question or that two years was the “total time [he] was
11 hiding out,” particularly because Weng did not clarify the
12 dates that he was in hiding. See Majidi v. Gonzales, 430
13 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
14 offer a plausible explanation for his inconsistent
15 statements to secure relief; he must demonstrate that a
16 reasonable fact-finder would be compelled to credit his
17 testimony.” (internal quotation marks omitted)(emphasis in
18 original)).
19 Implausibility
20 The IJ reasonably found implausible Weng’s testimony that
21 despite being wanted, he was able to leave China using his
22 own passport. See Ying Li v. Bureau of Citizenship &
6 1 Immigration Servs., 529 F.3d 79, 83 (2d Cir. 2008) (upholding
2 an IJ’s implausibility finding where petitioner alleged that
3 she was able to leave China on her passport while wanted by
4 local authorities). The agency was not required to credit
5 Weng’s explanation that he was wanted by the “local
6 government” and not the national government, given his
7 statements that he was wanted everywhere and that he could
8 not relocate in China. See id. (questioning why petitioner,
9 who was wanted “only by local authorities” in China, did not
10 relocate elsewhere “in that capacious land”); see also
11 Majidi, 430 F.3d at 80. Similarly, the IJ reasonably found
12 implausible Weng’s testimony that while he and his wife were
13 in hiding, he was able to work in a factory and his wife was
14 able to give birth by Caesarean section without the
15 authorities finding out. See Siewe, 480 F.3d at 168-69.
16 Corroboration
17 Weng’s failure to offer reliable corroboration of
18 events in China bolsters the agency’s adverse credibility
19 determination. See Biao Yang v. Gonzales, 496 F.3d 268,
20 273 (2d Cir. 2007) (“An applicant’s failure to corroborate
21 his or her testimony may bear on credibility, because the
22 absence of corroboration in general makes an applicant
7 1 unable to rehabilitate testimony that has already been
2 called into question.”). The weighing of evidence is
3 largely within the agency’s discretion. Xiao Ji Chen v.
4 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).
5 Weng’s government documents lacked foundation and were
6 unauthenticated, so they were reasonably accorded minimal
7 weight. See id. And the letters from his family were from
8 interested parties who were not subject to cross-
9 examination. See Y.C. v. Holder, 741 F.3d 324, 334 (2d
10 Cir. 2013) (deferring to agency’s decision to give little
11 weight to letter from applicant’s spouse in China); In re
12 H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010)
13 (giving diminished weight to letters from relatives because
14 they were from interested witnesses not subject to cross-
15 examination), rev’d on other grounds by Hui Lin Huang v.
16 Holder, 677 F.3d 130 (2d Cir. 2012). Weng’s contention
17 that authenticating his official documents would have
18 placed his family in danger is contradicted by his
19 assertion that his mother obtained the abortion certificate
20 from the village committee. See Xiao Xing Ni v. Gonzales,
21 494 F.3d 260, 263 (2d Cir. 2007); Tu Lin v. Gonzales, 446
22 F.3d 395, 400 (2d Cir. 2006).
8 1 Demeanor
2 Finally, the adverse credibility determination is
3 strengthened by the IJ’s demeanor finding. “[W]e give
4 particular deference to [credibility determinations] that
5 are based on the adjudicator’s observation of the
6 applicant’s demeanor,” particularly “where, as here, [the
7 observations] are supported by specific examples of
8 inconsistent testimony.” Li Hua Lin v. U.S. Dep’t of
9 Justice, 453 F.3d 99, 109 (2d Cir. 2006). The record
10 supports the IJ’s observations that Weng was not “an
11 entirely cooperative witness, even with his own counsel,”
12 that he answered questions with questions, asked for
13 questions to be repeated or was unresponsive, and that his
14 testimony became vague on cross-examination.
15 Given the multiple inconsistencies, the implausible
16 testimony, the lack of reliable corroboration, and the
17 demeanor finding, the “totality of the circumstances,”
18 supports the adverse credibility determination. Xiu Xia
19 Lin, 534 F.3d at 167. That determination is dispositive of
20 asylum, withholding of removal, and CAT relief because all
21 claims are based on the same factual predicate. See Paul
22 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
9 1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot.
6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court