Filed: Sep. 01, 2011
Latest Update: Feb. 22, 2020
Summary: 10-1787-ag Weng v. Holder BIA Hom, IJ A094 938 603 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: 10-1787-ag Weng v. Holder BIA Hom, IJ A094 938 603 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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10-1787-ag
Weng v. Holder
BIA
Hom, IJ
A094 938 603
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 1st day of September, two thousand eleven.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
PING WENG
Petitioner,
v. 10-1787-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Adedayo O. Idowu, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Ethan B. Kanter, Senior Litigation
Counsel; Paul F. Stone, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
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 Ping Weng, a native and citizen of the
People’s Republic of China, seeks review of an April 8, 2010,
order of the BIA, affirming the May 14, 2008, decision of
Immigration Judge (“IJ”) Sandy Hom, which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Ping
Weng, No. A094 938 603 (B.I.A. Apr. 8, 2010), aff’g No. A094
938 603 (Immig. Ct. N.Y. City May 14, 2008). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA decision, i.e., minus
the arguments for denying relief that were rejected by the
BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 522 (2d Cir. 2005). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009). For
applications governed by the REAL ID Act of 2005, the agency
may, considering the totality of the circumstances, base a
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credibility finding on an asylum applicant’s demeanor, the
plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
also Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).
Analyzed under the REAL ID Act, the agency’s adverse
credibility determination is supported by substantial
evidence.
In finding Weng’s testimony not credible, the IJ relied
in part on her demeanor, noting that her “hesitant,”
“repetitive,” and “nonresponsive” testimony gave the
impression that she was “simply reciting from a script rather
than giving testimony of a person having experienced life-
changing circumstances and events.” Because the IJ was in the
best position to observe Weng’s manner while testifying, we
afforded this finding particular deference. See Zhou Yun
Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled on
other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
494
F.3d 296 (2d Cir. 2007). The record reflects that Weng paused
during her testimony, and on one occasion was mumbling to
herself. Although Weng submits that an interpretation problem
may have caused her slow responses, we decline to address the
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argument in the first instance, because, as the Government
argues, Weng failed to raise this argument before the BIA.
See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d
Cir. 2007). Moreover, because the agency identified other
reasons to doubt Weng’s testimony, we rely more confidently on
the IJ’s demeanor finding. See Li Hua Lin v. U.S. Dep’t of
Justice,
453 F.3d 99, 109 (2d Cir. 2006). Accordingly, the
IJ’s demeanor finding was not erroneous.
In finding Weng not credible, the agency also reasonably
relied on an inconsistency in her testimony as to whether she
used her own passport to depart China. See Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). Under
the REAL ID Act, an adverse credibility finding may be
supported by inconsistencies in an alien’s testimony, even
when those inconsistencies are not central to the applicant’s
claim. See 8 U.S.C. § 1158(b)(1)(B)(iii). Weng argues that
her testimony was not inconsistent, because she explained that
she fled to Hong Kong using the documents arranged by the
smuggler, but left Hong Kong using her own passport. However,
the agency did not err in finding Weng’s testimony
inconsistent, as this explanation is insufficient to resolve
the inconsistencies in her testimony and would not necessarily
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be compelling to a reasonable factfinder. See Majidi v.
Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
The agency also reasonably found implausible that Weng
was a fugitive from the Chinese police but was able to depart
China without difficulty, and, according to her final version
of events, using her own passport. Weng argues that her
ability to depart from Hong Kong with her own passport does
not undermine her credibility. Again, however, her explana-
tion would not be compelling to a reasonable factfinder. See
id.
Lastly, the agency reasonably noted that Weng’s failure
to provide a document she claimed Chinese police had served on
her parents further undermined her credibility. See 8 U.S.C.
§ 1158(b)(1)(B)(ii). Although Weng argues that it would have
been difficult for her illiterate parents to deliver this
document from China, the agency did not err finding that her
failure to produce this document further undermined her
credibility. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d
Cir. 2007) (holding that the agency may rely on a lack of
corroborative evidence where an applicant’s testimony is not
otherwise credible);
Majidi, 430 F.3d at 80-81.
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Ultimately, because a reasonable fact-finder would not be
compelled to conclude to the contrary, the IJ’s adverse
credibility determination was supported by substantial
evidence, and the agency’s denial of Weng’s application for
asylum, withholding of removal, and CAT relief was not in
error as all three claims shared the same factual predicate.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006)
(withholding of removal); Xue Hong Yang v. U.S. Dep’t of
Justice,
426 F.3d 520, 523 (2d Cir. 2006) (CAT). To the
extent that Weng claims to fear torture due to her illegal
departure from China, we decline to address this claim because
Weng did not exhaust it before the BIA. See Lin Zhong v. U.S.
Dep’t of Justice,
480 F.3d 104, 122 (2d Cir. 2007).
Regardless, because Weng fails to point to any evidence in
support of her illegal departure claim, it is without merit.
See Mu Xiang Lin v. U.S. Dep’t of Justice,
432 F.3d 156, 160.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
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Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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