     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




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