Filed: Dec. 14, 2015
Latest Update: Mar. 02, 2020
Summary: 13-4548 Weng v. Lynch BIA Poczter, IJ A200 161 625 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 NOTA
Summary: 13-4548 Weng v. Lynch BIA Poczter, IJ A200 161 625 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 NOTAT..
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13-4548
Weng v. Lynch
BIA
Poczter, IJ
A200 161 625
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 14th day of December, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 DENNIS JACOBS,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 ZHENMING WENG,
14 Petitioner,
15
16 v. 13-4548
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lewis G. Hu, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Shelley R. Goad, Assistant
27 Director; Kristin Moresi, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
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 Zhenming Weng, a native and citizen of China, seeks
6 review of the November 6, 2013 decision of the BIA affirming
7 the April 11, 2012 decision of the Immigration Judge (“IJ”),
8 denying his application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”).
10 See In re Zhenming Weng, No. A200 161 625 (B.I.A. Nov. 6,
11 2013), aff’g No. A200 161 625 (Immig. Ct. N.Y.C. Apr. 11,
12 2012). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have
15 considered both the IJ's and the BIA's opinions “for the
16 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,
17 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
18 of review are well established. See 8 U.S.C. §
19 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d
20 Cir. 2009).
21 For asylum applications like Weng’s, governed by the
22 REAL ID Act of 2005, the agency may, “[c]onsidering the
23 totality of the circumstances,” base a credibility finding
2
1 on an asylum applicant’s “demeanor, candor, or
2 responsiveness,” the plausibility of his account, and
3 inconsistencies in his statements, without regard to whether
4 they go “to the heart of the applicant’s claim.” 8 U.S.C.
5 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
6 F.3d 162, 167 (2d Cir. 2008). “We defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia
10
Lin, 534 F.3d at 167.
11 Substantial evidence supports the agency’s finding that
12 Weng was not credible. The agency reasonably relied in part
13 on Weng’s demeanor, noting that he paused for lengthy
14 periods while testifying and that his testimony was vague
15 and stilted. See 8 U.S.C. § 1158(b)(1)(B)(iii); Karaj v.
16 Gonzales,
462 F.3d 113, 116 (2d Cir. 2006). That finding is
17 supported by the hearing transcript.
18 The agency’s demeanor finding and the adverse
19 credibility determination as a whole are further bolstered
20 by record inconsistencies with respect to when Weng was
21 detained by Chinese authorities, the medical treatment he
22 received after his release from custody, and whether or how
3
1 many times the police came looking for him in China after he
2 fled to the United States. The agency was not compelled to
3 credit Weng’s explanations for these inconsistencies. See
4 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
5 Given the demeanor and inconsistency findings,
6 substantial evidence supports the agency’s adverse
7 credibility determination. See 8 U.S.C. §
8 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167. That
9 determination was dispositive of asylum, withholding of
10 removal, and CAT relief because those claims were based on
11 the same factual predicate. See Paul v. Gonzales,
444 F.3d
12 148, 156-57 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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