         10-279-ag
         Weng v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A089 253 941
                           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 18th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                REENA RAGGI,
 9                DENNY CHIN,
10                      Circuit Judges.
11       _____________________________________
12
13       JIAN MING WENG,
14                Petitioner,
15
16                        v.                                    10-279-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Feng Li, Moslemi and Associates,
24                                     Inc., New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Jennifer L. Lightbody,
28                                     Assistant Director; Todd J. Cochran,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 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

 4   is DENIED.

 5          Petitioner Jian Ming Weng, a native and citizen of the

 6   People’s Republic of China, seeks review of a January 7,

 7   2010, order of the BIA, affirming the August 6, 2008,

 8   decision of Immigration Judge (“IJ”) Thomas Mulligan, which

 9   denied his application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).        In

11   re Jian Ming Weng, No. A089 253 941 (B.I.A. Jan. 7, 2010),

12   aff’g No. A089 253 941 (Immig. Ct. N.Y. City Aug. 6, 2008).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15          Under the circumstances of this case, we review the

16   IJ’s decision as modified by the BIA decision, i.e., minus

17   the arguments for denying relief that were rejected by the

18   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

19   520, 522 (2d Cir. 2005).     The applicable standards of review

20   are well-established.     See Shu Wen Sun v. BIA, 510 F.3d 377,

21   379 (2d Cir. 2007); Salimatou Bah v. Mukasey, 529 F.3d 99,

22   110 (2d Cir. 2008).     For applications governed by the REAL

23   ID Act of 2005, the agency may, considering the totality of

                                     2
 1   the 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); see also Matter of J-Y-C-, 24 I. & N.

 6   Dec. 260, 265 (BIA 2007).   Analyzed under the REAL ID Act,

 7   the agency’s adverse credibility determination is supported

 8   by substantial evidence.

 9       In finding Weng’s testimony not credible, the IJ relied

10   in part on his demeanor, noting that his affect changed when

11   questioned on cross-examination and that he exhibited

12   indicia of anxiety.   Because the IJ was in the best position

13   to observe Weng’s manner while testifying, we afford his

14   demeanor finding particular deference.   See Shu Wen Sun, 510

15   F.3d at 380-81; Jin Chen v. U.S. Dep’t of Justice, 426 F.3d

16   104, 113 (2d Cir. 2005), Zhou Yun Zhang v. INS, 386 F.3d 66,

17   73-74 (2d Cir. 2004), overruled on other grounds by Shi

18   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.

19   2007).

20       In finding Weng not credible, the agency also

21   reasonably relied on inconsistencies in his testimony.     See

22   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).


                                   3
 1   First, the IJ noted that Weng’s testimony was not consistent

 2   with his documentary evidence with respect to his claim that

 3   police monitored his house while he was in China.     When

 4   asked why his written submissions omitted his claim that the

 5   police monitored him at home, he answered that he “forgot to

 6   write it,” and that his mother “probably thought that it was

 7   not important” to include in her letter.   However, the

 8   agency was entitled to disregard these explanations as they

 9   would not necessarily be compelling to a reasonable

10   factfinder.   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

11   Cir. 2005).

12       The agency also found that Weng’s testimony that the

13   police had visited his parents after he fled China and

14   threatened that he would be arrested upon his return was

15   inconsistent with his documentary submissions.   With regard

16   to this finding, the IJ erroneously stated “there is

17   absolutely nothing in [Weng’s] statement indicating that the

18   police contacted his parents after he left the residence.”

19   In fact, Weng’s statement does convey that the police

20   contacted his parents after he fled China, saying “[n]ow

21   they found that I did not report so they already threatened

22   my parents that they would arrest and sentence me.”     The


                                   4
 1   BIA, however, rephrased this finding, noting that Weng

 2   testified that the police had contacted his parents “[m]any

 3   times,” a detail that was omitted from Weng’s documentary

 4   evidence.   Using its modified finding, the BIA did not err

 5   in relying, in part, on the omission to find Weng not

 6   credible.    See Xiu Xia Lin, 534 F.3d at 166 n.3 (noting that

 7   an “omission in a document submitted to corroborate the

 8   applicant’s testimony, like a direct inconsistency . . . can

 9   serve as a proper basis for an adverse credibility

10   determination”).     Moreover, the BIA’s decision illustrates

11   that remand for it to address the IJ’s error would be

12   futile, as it upheld the IJ’s adverse credibility

13   determination without relying on the erroneous aspect of his

14   finding.    See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

15   391 (2d Cir. 2005).     Finally, the agency reasonably

16   discounted Weng’s explanation that his mother’s letter did

17   not mention that the police came looking for him on multiple

18   occasions because she was not highly educated.      See Majidi,

19   430 F.3d at 80-81.

20       In light of the agency’s demeanor and adverse

21   credibility findings, the agency did not err in denying

22   Weng’s application for relief.      See Shu Wen Sun, 510 F.3d at

23   380-81; Xiu Xia Lin, 534 F.3d at 167.     Thus, the agency’s
                                     5
 1   denial of his application for asylum, withholding of

 2   removal, and CAT relief was not in error as all three claims

 3   shared the same factual predicate.    See Paul v. Gonzales,

 4   444 F.3d 148, 156 (2d Cir. 2006) (withholding of removal);

 5   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523

 6   (2d Cir. 2005) (CAT).

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, any stay of

 9   removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot.    Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2), and Second

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17
18




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