Filed: Jul. 06, 2015
Latest Update: Mar. 02, 2020
Summary: 13-4764 Feng v. Lynch BIA Laforest, IJ A095 941 034 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: 13-4764 Feng v. Lynch BIA Laforest, IJ A095 941 034 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
13-4764
Feng v. Lynch
BIA
Laforest, IJ
A095 941 034
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 6th day of July, two thousand fifteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 YUEWEN FENG,
14 Petitioner,
15
16 v. 13-4764
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,1
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Guang Jun Gao, Law Offices of Guang
24 Jun Gao, LLP, Flushing, New York.
25
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Loretta E. Lynch is automatically substituted for former
Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Stephen J. Flynn,
3 Assistant Director; Lynda A. Do,
4 Attorney, Office of Immigration
5 Litigation, United States
6 Department of Justice, Washington,
7 D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner Yuewen Feng, a native and citizen of the
14 People’s Republic of China, seeks review of a December 4, 2013,
15 decision of the BIA, affirming the October 19, 2012, decision
16 of an Immigration Judge (“IJ”), denying his application for
17 asylum, withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Yuewen Feng, No. A095 941 034
19 (B.I.A. Dec. 4, 2013), aff’g No. A095 941 034 (Immig. Ct. N.Y.
20 City Oct. 19, 2012). We assume the parties’ familiarity with
21 the underlying facts and procedural history in this case.
22 Under the circumstances of this case, we have considered
23 both the IJ’s and the BIA’s opinions. Zaman v. Mukasey, 514
24 F.3d 233, 237 (2d Cir. 2008) (per curiam) (quoting Wangchuck
25 v. DHS,
448 F.3d 524, 528 (2d Cir. 2006)). The applicable
2
1 standards of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
3 (2d Cir. 2008) (per curiam). For asylum applications like
4 Feng’s, governed by the REAL ID Act, the agency may,
5 “[c]onsidering the totality of the circumstances,” base a
6 credibility determination on inconsistencies in an applicant’s
7 statements and other record evidence “without regard to
8 whether” they go “to the heart of the applicant’s claim.”
9 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64.
10 The agency’s adverse credibility determination is based on
11 substantial evidence.
12 The IJ reasonably relied on multiple discrepancies among
13 Feng’s testimony, his asylum application, and his adjustment
14 application, all of which called into question whether Feng was
15 actually in China at the time of the alleged persecution.
16 Feng’s asylum application listed him as living in China from
17 his birth in 1969 until 2009 when he fled to the United States.
18 But at his hearing, he acknowledged the falsity of that
19 statement and testified that he first entered the United States
20 in December 1998, lived in Puerto Rico for five years, returned
21 to China in 2004, and reentered the United States (without
3
1 inspection) in 2009. When asked to explain, Feng first stated
2 that a law firm filled out the application without his
3 knowledge. Then, after admitting that he provided his
4 background information to the firm, Feng stated he did not know
5 why his asylum application omitted his five years in Puerto
6 Rico. The IJ was entitled to rely on the discrepancy in making
7 an adverse credibility determination, see Xiu Xia Lin, 534 F.3d
8 at 163-64, and was not required to accept Feng’s explanation,
9 see Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
10 Feng also testified that he applied for adjustment of
11 status in Puerto Rico in 1998; however, Feng admitted that he
12 denied ever filing for any immigration benefits during his
13 interview with an asylum officer. Feng also admitted that his
14 adjustment application itself contained false statements
15 regarding when he entered Puerto Rico. Feng acknowledged that
16 his application listed an earlier entry date in order to obtain
17 the two years of residency necessary to adjust status, but at
18 the same time insisted that he knew nothing about the adjustment
19 application because it was filled out by another person. The
20 IJ was not required to credit this attempt to shift the
21 responsibility for false information. See
Majidi, 430 F.3d at
4
1 80-81. Because Feng admitted to lying on multiple occasions
2 to obtain immigration benefits and because his false statements
3 call into question his presence in China during the relevant
4 periods, the IJ reasonably relied on the false statements to
5 find Feng incredible. See Siewe v. Gonzales,
480 F.3d 160, 170
6 (2d Cir. 2007); see also Xiu Xia
Lin, 534 F.3d at 167.
7 Accordingly, because all of Feng’s claims rely on his
8 credibility, the agency did not err in denying asylum,
9 withholding of removal, and CAT relief because those claims were
10 based on the same factual predicate. Paul v. Gonzales,
444 F.3d
11 148, 156-57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition is
15 VACATED, and any pending motion for a stay of removal in this
16 petition is DISMISSED as moot. Any pending request for oral
17 argument in this petition is DENIED in accordance with Federal
18 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local
19 Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O=Hagan Wolfe, Clerk
5
