         08-6038-ag
         Weng v. Holder
                                                                                        BIA
                                                                                 Mulligan, IJ
                                                                                A078 144 144
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
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 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 30 th day of November, two thousand                nine.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                GUIDO CALABRESI,
 9                BARRINGTON D. PARKER,
10                         Circuit Judges.
11       _______________________________________
12
13       RONG HUI WENG, ALSO KNOWN AS
14       RONG HUI WONG,
15                Petitioner,
16
17                        v.                                    08-6038-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., 1 UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________


                      1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric. H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:        Dehai Zhang, Flushing, New York.
 2
 3   FOR RESPONDENT:        Tony West, Assistant Attorney
 4                          General; Barry J. Pettinato,
 5                          Assistant Director; Tim Ramnitz,
 6                          Attorney, Office of Immigration
 7                          Litigation, United States Department
 8                          of Justice, Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

11   Board of Immigration Appeals (“BIA”) decision, it is hereby

12   ORDERED, ADJUDGED, AND DECREED, that the petition for review

13   is DENIED.

14       Rong Hui Weng, a native and citizen of China, seeks

15   review of the November 17, 2008 order of the BIA affirming

16   the September 25, 2007 decision of Immigration Judge (“IJ”)

17   Thomas J. Mulligan, which denied his application for asylum,

18   withholding of removal, and relief under the Convention

19   Against Torture (“CAT”).   In re Rong Hui Weng, No. A078 144

20   144 (B.I.A. Nov. 17, 2008), aff’g No. A078 144 144 (Immig.

21   Ct. N.Y. City Sept. 25, 2007).    We assume the parties’

22   familiarity with the underlying facts and procedural history

23   in this case.

24       When the BIA agrees with the IJ that a petitioner is

25   not credible and, without rejecting any of the IJ’s grounds

26   for decision, emphasizes particular aspects of that

27   decision, we review both decisions – or more precisely, we


                                   2
1    review the IJ’s decision including the portions not

2    explicitly discussed by the BIA.    See Yun-Zui Guan v.

3    Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) .   We review the

4    agency’s factual findings, including adverse credibility

5    determinations, under the substantial evidence standard.

6    See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey,

7    519 F.3d 90, 95 (2d Cir. 2008) .   Questions of law and the

8    application of law to undisputed fact are reviewed de novo.

9    See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

10   2008).

11       Substantial evidence supports the agency’s adverse

12   credibility determination.    First, we defer to the IJ’s

13   finding that Weng’s demeanor supported an adverse

14   credibility determination.    See Majidi v. Gonzales, 430 F.3d

15   77, 81 n.1. (2d Cir. 2005).    The IJ also reasonably relied

16   on discrepancies between Weng’s testimony, his asylum

17   application, and the record of his airport interview.       In

18   his airport interview, Weng stated that he was afraid to

19   return to China because he “made a girl pregnant.”     However,

20   Weng indicated in his asylum application and during his

21   testimony that he feared arrest in China after a village

22   official falsely accused him of selling pornography.      When


                                    3
1    confronted with this discrepancy, Weng testified that he

2    made false statements during his airport interview because

3    he was “very, very nervous” and feared the immigration

4    officials.

5        When an IJ bases an adverse credibility determination

6    on discrepancies arising from an applicant’s statements in

7    an airport interview, this Court examines the interview to

8    ensure that it represents a “sufficiently accurate record”

9    of the applicant’s statements.    Ramsameachire v. Ashcroft,

10   357 F.3d 169, 179 (2d Cir. 2004) .   Here, it is clear that on

11   remand the agency considered the factors discussed in

12   Ramsameachire and reasonably determined that the airport

13   interview was sufficiently reliable.    The IJ noted that the

14   record of the interview was detailed, providing verbatim

15   questions and answers.   And though he recognized that the

16   record incorrectly stated that the interview was conducted

17   in “Chinese,” Weng testified that the interview was

18   conducted in Mandarin and that he had no problem

19   communicating or understanding the questions.    Nor did

20   Weng’s claim that he was nervous and fearful preclude the

21   agency from relying on the interview as a basis for its

22   adverse credibility determination, as the IJ considered this


                                   4
1    claim and gave the interview reduced weight because of it.

2    See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396, 397 n.6,

3    399 n.8 (2d Cir. 2005).

4        The IJ also reasonably relied on other discrepancies in

5    the record.   The IJ observed that, while Weng testified that

6    Chinese authorities accused him only of selling pornography,

7    statements from his parents and friend indicated that he was

8    accused of selling pornography and Falun Gong materials.

9    Further, while Weng testified that his parents did not know

10   how to write, their written statement appeared in the

11   record.   Though Weng has offered plausible explanations for

12   at least some of these discrepancies, he has failed to show,

13   as he must, that a reasonable fact finder would be compelled

14   to credit his testimony.   See Majidi, 430 F.3d at 80-81.

15       Ultimately, the agency’s adverse credibility

16   determination was supported by substantial evidence.

17   Accordingly, the agency properly denied Weng’s application

18   for asylum, withholding of removal, and CAT relief because

19   all three claims were based on the same factual predicate.

20   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006);

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

22   (2d Cir. 2005).

23       For the foregoing reasons, the petition for review is
                                  5
1    DENIED.   As we have completed our review, any stay of

2    removal that the Court previously granted in this petition

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

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

5    oral argument in this petition is DENIED in accordance with

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

7    Circuit Local Rule 34(b).

 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10
11                               By:___________________________




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