Filed: Jul. 27, 2017
Latest Update: Mar. 03, 2020
Summary: 16-84 Weng v. Sessions BIA Christensen, IJ A205 438 436 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
Summary: 16-84 Weng v. Sessions BIA Christensen, IJ A205 438 436 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 ..
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16-84
Weng v. Sessions
BIA
Christensen, IJ
A205 438 436
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 27th day of July, two thousand seventeen.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 XIU YING WENG,
14 Petitioner,
15
16 v. 16-84
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhou Wang, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Cindy S.
27 Ferrier, Assistant Director; Surell
28 Brady, Trial Attorney, Office of
29 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 is
4 DENIED.
5 Petitioner Xiu Ying Weng, a native and citizen of the
6 People’s Republic of China, seeks review of a December 16, 2015,
7 decision of the BIA affirming a July 22, 2014, decision of an
8 Immigration Judge (“IJ”) denying Weng’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Xiu Ying Weng, No. A205 438 436 (B.I.A.
11 Dec. 16, 2015), aff’g No. A205 438 436 (Immig. Ct. N.Y. City
12 July 22, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history.
14 Under the circumstances of this case, we have reviewed both
15 the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales,
16 432 F.3d 391, 394 (2d Cir. 2005).* The standards of review are
17 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
18 v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008). The agency
19 may, “[c]onsidering the totality of the circumstances,” base
20 an adverse credibility determination on an applicant’s
* Weng does not challenge the denial of her asylum application
as untimely. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545
n.7 (2d Cir. 2005).
2
1 “demeanor, candor, or responsiveness,” as well as discrepancies
2 between an applicant’s and witness’s testimony, between an
3 applicant’s oral and written statements, and between an
4 applicant’s testimony and other record evidence. 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
6 defer . . . to an IJ’s credibility determination unless . . .
7 it is plain that no reasonable fact-finder could make such an
8 adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
9 Substantial evidence supports the agency’s adverse
10 credibility ruling, which was based on multiple inconsistencies
11 between Weng’s and her sister’s testimony regarding their
12 church attendance in the United States, as well as their lack
13 of candor regarding Weng’s sister’s two-month trip to China,
14 and an inconsistency between Weng’s testimony and her asylum
15 application regarding the number of times she was fined for
16 violating the family planning policy. Taken together, these
17 are material discrepancies that call into question whether Weng
18 is, or was, a practicing Christian, and what, if any, harm she
19 suffered under the family planning policy. See Xiu Xia Lin,
20 534 F.3d at 167; Siewe v. Gonzales,
480 F.3d 160, 170 (2d Cir.
21 2007); Xian Tuan Ye v. Dep’t of Homeland Sec.,
446 F.3d 289,
22 295 (2d Cir. 2006).
3
1 The agency reasonably determined that Weng’s corroborating
2 evidence did not rehabilitate her credibility, particularly
3 because the letter from her church in China did not mention that
4 the church had been raided by police. See Biao Yang v.
5 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007); see also Xiu Xia
6
Lin, 534 F.3d at 166-67 & n.3 (an inconsistency and an omission
7 are “functionally equivalent” for credibility purposes). The
8 agency also reasonably gave diminished weight to the letters
9 from Weng’s husband and other relatives and friends in China
10 because these letters were authored by witnesses who were not
11 available for cross-examination. Y.C. v. Holder,
741 F.3d 324,
12 334 (2d Cir. 2013).
13 Given the discrepancies relating to Weng’s religious
14 practice and her violations of the family planning policy, as
15 well as her lack of rehabilitative corroborating evidence, the
16 totality of the circumstances supports the agency’s adverse
17 credibility determination. Xiu Xia
Lin, 534 F.3d at 167; Xian
18 Tuan
Ye, 446 F.3d at 295-96. Because Weng’s claims were all
19 based on the same factual predicates, the adverse credibility
20 determination is dispositive of asylum, withholding of removal,
21 and CAT relief. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir.
22 2006). We therefore do not reach the arguments specific to
4
1 Weng’s allegation of past harm under the family planning policy.
2 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk
5
