Filed: Aug. 21, 2012
Latest Update: Mar. 26, 2017
Summary: 11-2161-ag Weng v. Holder BIA Lamb, IJ A099 670 041 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 NOT
Summary: 11-2161-ag Weng v. Holder BIA Lamb, IJ A099 670 041 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..
More
11-2161-ag
Weng v. Holder
BIA
Lamb, IJ
A099 670 041
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 21st day of August, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 _____________________________________
13
14 XIANEN WENG,
15 Petitioner,
16
17 v. 11-2161-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Peter Lobel, New York,
25 New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Linda S. Wernery, Assistant
29 Director; Gregory M. Kelch,
1 Attorney, Office of Immigration
2 Litigation, 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 Xianen Weng, a native and citizen of China,
10 seeks review of an April 29, 2011, order of the BIA,
11 affirming an April 2, 2009, decision of Immigration Judge
12 (“IJ”) Elizabeth A. Lamb, denying his application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Xianen Weng, No.
15 A099 670 041 (B.I.A. Apr. 29, 2011), aff’g No. A099 670 041
16 (Immig. Ct. N.Y. City Apr. 2, 2009). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 Under the circumstances of this case, we have reviewed
20 the decision of the IJ as supplemented by the BIA. See Xian
21 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 293, 296
22 (2d Cir. 2006). The applicable standards of review are
23 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
24 v. Holder,
562 F.3d 510, 513 (2d Cir. 2009). For
25 applications like this one, governed by the REAL ID Act of
26 2005, the agency may, considering the totality of the
2
1 circumstances, base a credibility finding on an asylum
2 applicant’s demeanor, 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); Matter of J-Y-C-, 24 I. & N. Dec. 260,
6 265 (B.I.A. 2007). Analyzed under the REAL ID Act, the
7 agency’s adverse credibility determination is supported by
8 substantial evidence.
9 In finding Weng not credible, the agency reasonably
10 relied on the omission of his detention and beating from his
11 original asylum application. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
13 166 (2d Cir. 2008) (providing that, for purposes of
14 analyzing a credibility determination, “[a]n inconsistency
15 and an omission are . . . functionally equivalent”).
16 Although Weng attempted to explain this omission by stating
17 that he considered his own persecution trivial compared to
18 that of his wife’s and had only included what he thought was
19 legally sufficient to secure asylum in his original
20 application, the IJ was not required to credit his
21 explanations as they would not necessarily be compelling to
22 a reasonable fact-finder. See Majidi v. Gonzales,
430 F.3d
23 77, 80-81 (2d Cir. 2005) (holding that an agency need not
24 credit an applicant’s explanations for inconsistencies in
25 the record unless those explanations would compel a
3
1 reasonable fact-finder to do so). As the IJ explained, his
2 detention and beating were “part of what he and his wife
3 allegedly went through,” and Weng “had ample opportunity to
4 let this come out [during his prior testimony].”
5 Notwithstanding Weng’s argument to the contrary, the IJ
6 did not ignore his explanation that he failed to include his
7 detention and beating in his original application because he
8 thought his wife’s persecution was sufficient to secure
9 asylum. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
10 315, 337 n.17 (2d Cir. 2006) (noting that the agency is
11 presumed to have “taken into account all of the evidence
12 before [it], unless the record compellingly suggests
13 otherwise”). The agency is not required to “expressly parse
14 or refute on the record each individual argument or piece of
15 evidence offered by the petitioner.” Jian Hui Shao v.
16 Mukasey,
546 F.3d 138, 169 (2d Cir. 2008) (quotation
17 omitted). Nevertheless, the IJ explicitly stated Weng’s
18 explanation in her oral decision, and, as such, the record
19 does not compellingly suggest that the IJ ignored Weng’s
20 full explanation for his omission, see Xiao Ji Chen, 471
21 F.3d at 337 n.17.
22 Weng’s argument that the IJ erred in finding him not
23 credible for failing to produce reasonably available
24 corroborating evidence, without first complying with the
4
1 requirements of Daillo v. INS, 232 F.3d 279, 280 (2d Cir.
2 2000) and Jin Shui Qui v. Ashcroft,
329 F.3d 140, 153 (2d
3 Cir. 2003), is misplaced. We have explained that an
4 applicant’s failure to corroborate his testimony may bear on
5 credibility, either because the absence of particular
6 corroborating evidence is viewed as suspicious, or because
7 the absence of corroboration in general makes an applicant
8 unable to rehabilitate testimony that has already been
9 called into question. See Biao Yang v. Gonzales,
496 F.3d
10 268, 273 (2d Cir. 2007) (per curiam). Here, the IJ based
11 her adverse credibility determination on Weng’s omission of
12 his detention and beating from his original application and
13 not on his failure to provide reasonably available
14 corroborating evidence, as his argument would suggest. As a
15 result, the IJ did not err by finding that Weng was unable
16 to rehabilitate his credibility due to a lack of
17 corroborative evidence.
18 In light of the agency’s properly supported
19 adverse credibility finding, it did not err in denying
20 Weng’s applications for relief. See Paul v. Gonzales, 444
21 F.3d 148, 156 (2d Cir. 2006) (holding that the agency need
22 not analyze separately a withholding of removal claim based
23 on the same facts as an applicant’s asylum claim); Xue Hong
24 Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir.
25 2006) (same, with respect to CAT).
26 For the foregoing reasons, the petition for review is
5
1 DENIED. As we have completed our review, any stay of
2 removal that the Court previously granted in this petition
3 is VACATED, and any pending motion for a stay of removal in
4 this petition is DISMISSED as moot. Any pending request for
5 oral argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
6
