     16-4256
     Weng v. Whitaker
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A205 907 154
                             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
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 28th day of December, two thousand eighteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LING FENG WENG,
14            Petitioner,
15
16                      v.                                       16-4256
17                                                               NAC
18   MATTHEW G. WHITAKER,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Michael Brown, New York, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; Carl Mcintyre,
27                                      Assistant Director; Margaret A.
28                                      O’Donnell, Trial Attorney, Office
29                                      of 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

4    is DENIED.

5          Petitioner Ling Feng Weng, a native and citizen of the

6    People’s Republic of China, seeks review of a December 2,

7    2016, decision of the BIA affirming a January 27, 2016,

8    decision   of    an   Immigration   Judge     (“IJ”)   denying   Weng’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).               In re Ling

11   Feng Weng, No. A 205 907 154 (B.I.A. Dec. 2, 2016), aff’g No.

12   A 205 907 154 (Immig. Ct. N.Y. City Jan. 27, 2016).          We assume

13   the   parties’    familiarity   with    the    underlying   facts   and

14   procedural history in this case.

15         Under the circumstances of this case, we review both the

16   BIA’s and IJ’s decisions, but we do not reach the IJ’s

17   alternative burden finding because the BIA did not rely on

18   it.   See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.

19   2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

20   522 (2d Cir. 2005).      The applicable standards of review are

21   well established.      See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

22   v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).             In making

                                         2
1    a credibility determination, the agency must “[c]onsider[]

2    the   totality    of    the    circumstances”   and     may    base     its

3    determination     on   the     applicant’s   “demeanor,       candor,   or

4    responsiveness, . . .           the inherent plausibility of the

5    applicant’s . . . account,” inconsistencies or omissions in

6    the applicant’s statements or between his statements and

7    other evidence “without regard to whether an inconsistency,

8    inaccuracy, or falsehood goes to the heart of the applicant’s

9    claim,    or     any   other     relevant    factor.”          8   U.S.C.

10   § 1158(b)(1)(B)(iii);accord Xiu Xia Lin, 534 F.3d at 163-64,

11   166-67.   “We defer . . . to an IJ’s credibility determination

12   unless, from the totality of the circumstances, it is plain

13   that no reasonable fact-finder could make such an adverse

14   credibility ruling.”          Xiu Xia Lin, 534 F.3d at 167.             We

15   conclude that there is substantial evidence for the adverse

16   credibility determination.

17         Omissions & Inconsistencies

18         The agency reasonably relied on omissions and

19   inconsistencies.       See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong

20   Fei Gao v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018)

21   (holding that IJs may rely on omissions and

22   inconsistencies, including non-material ones, but noting

                                         3
1    that omissions and inconsistencies “that ha[ve] no tendency

2    to suggest a petitioner fabricated his or her claim will

3    not support an adverse credibility determination”); Xiu Xia

4    Lin, 534 F.3d at 166-67 & n.3 (explaining that certain

5    omissions are “functionally equivalent” to

6    inconsistencies).   Weng alleged in his asylum application

7    that family planning officials raided his home, destroyed

8    his property, arrested his father, and threatened him and

9    his wife with sterilization because his wife failed to

10   attend a scheduled pregnancy checkup, and that his mother

11   had to pay a fine to obtain his father’s release; but he

12   failed to mention these facts at his hearing.     See Xiu Xia

13   Lin, 534 F.3d at 166n.3.   The agency reasonably concluded

14   that the omission tended to show that Weng could not

15   remember what was written in his statement.     See Siewe v.

16   Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (“The

17   speculation that inheres in inference is not ‘bald’ if the

18   inference is made available to the factfinder by record

19   facts, or even a single fact, viewed in the light of common

20   sense and ordinary experience.     So long as an inferential

21   leap is tethered to the evidentiary record, we will accord

22   deference to the finding.”).   Weng’s argument that he did

                                    4
1    not testify about his father’s arrest because he was not

2    asked about it is unavailing because it was his burden to

3    prove eligibility for relief and he was asked what evidence

4    he had that the government wanted to sterilize him.       See

5    8 U.S.C. § 1158(b)(1)(B)(i) (burden is on alien to

6    establish asylum eligibility), (iii) (“[t]here is no

7    presumption of credibility”); 8 C.F.R. § 1208.13(a).

8        The agency also reasonably relied on internal

9    inconsistencies in Weng’s testimony and inconsistencies

10   between the testimony and the documentary evidence.

11   8 U.S.C. § 1158(b)(1)(B)(iii).    Weng stated that his wife

12   was forced to have an abortion in 2011, but his wife’s

13   letter stated the abortion occurred in 2012.    Further

14   undermining the allegation of a forced abortion was Weng’s

15   mistaken, and then corrected, testimony that the abortion

16   certificate he submitted reflected his wife’s

17   sterilization.   Nor did the agency err in relying on more

18   tangential inconsistencies.   See Xiu Xia Lin, 534 F.3d at

19   167 (holding that “IJ may rely on any inconsistency or

20   omission in making an adverse credibility determination as

21   long as the ‘totality of the circumstances’” supports the

22   credibility ruling)(emphasis in original)); see also Hong

                                   5
1    Fei Gao, 891 F.3d at 77-79 (reviewing standards for

2    evaluating omissions and inconsistencies).          Weng testified

3    that he first violated China’s family planning policies

4    because his son was born before he was married, but the

5    marriage and birth certificates place the birth after the

6    marriage.   And Weng’s testimony about the time he spent in

7    hiding was inconsistent because he testified to two years

8    at one point and one month at another.         The IJ was not

9    required to credit Weng’s explanation that he misheard the

10   question or that two years was the “total time [he] was

11   hiding out,” particularly because Weng did not clarify the

12   dates that he was in hiding.        See Majidi v. Gonzales, 430

13   F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than

14   offer a plausible explanation for his inconsistent

15   statements to secure relief; he must demonstrate that a

16   reasonable fact-finder would be compelled to credit his

17   testimony.” (internal quotation marks omitted)(emphasis in

18   original)).

19         Implausibility

20         The IJ reasonably found implausible Weng’s testimony that

21   despite being wanted, he was able to leave China using his

22   own   passport.   See   Ying   Li    v.   Bureau   of   Citizenship   &

                                     6
1    Immigration Servs., 529 F.3d 79, 83 (2d Cir. 2008) (upholding

2    an IJ’s implausibility finding where petitioner alleged that

3    she was able to leave China on her passport while wanted by

4    local authorities).            The agency was not required to credit

5    Weng’s     explanation        that    he       was   wanted   by   the   “local

6    government”      and    not    the    national       government,     given    his

7    statements that he was wanted everywhere and that he could

8    not relocate in China.           See id. (questioning why petitioner,

9    who was wanted “only by local authorities” in China, did not

10   relocate      elsewhere    “in       that      capacious   land”);    see    also

11   Majidi, 430 F.3d at 80. Similarly, the IJ reasonably found

12   implausible Weng’s testimony that while he and his wife were

13   in hiding, he was able to work in a factory and his wife was

14   able     to   give     birth    by     Caesarean       section     without    the

15   authorities finding out.             See Siewe, 480 F.3d at 168-69.

16          Corroboration

17          Weng’s failure to offer reliable corroboration of

18   events in China bolsters the agency’s adverse credibility

19   determination.         See Biao Yang v. Gonzales, 496 F.3d 268,

20   273 (2d Cir. 2007) (“An applicant’s failure to corroborate

21   his or her testimony may bear on credibility, because the

22   absence of corroboration in general makes an applicant

                                                7
1    unable to rehabilitate testimony that has already been

2    called into question.”).   The weighing of evidence is

3    largely within the agency’s discretion.    Xiao Ji Chen v.

4    U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).

5    Weng’s government documents lacked foundation and were

6    unauthenticated, so they were reasonably accorded minimal

7    weight.   See id.   And the letters from his family were from

8    interested parties who were not subject to cross-

9    examination.   See Y.C. v. Holder, 741 F.3d 324, 334 (2d

10   Cir. 2013) (deferring to agency’s decision to give little

11   weight to letter from applicant’s spouse in China); In re

12   H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010)

13   (giving diminished weight to letters from relatives because

14   they were from interested witnesses not subject to cross-

15   examination), rev’d on other grounds by Hui Lin Huang v.

16   Holder, 677 F.3d 130 (2d Cir. 2012).    Weng’s contention

17   that authenticating his official documents would have

18   placed his family in danger is contradicted by his

19   assertion that his mother obtained the abortion certificate

20   from the village committee.     See Xiao Xing Ni v. Gonzales,

21   494 F.3d 260, 263 (2d Cir. 2007); Tu Lin v. Gonzales, 446

22   F.3d 395, 400 (2d Cir. 2006).

                                     8
1        Demeanor

2        Finally, the adverse credibility determination is

3    strengthened by the IJ’s demeanor finding. “[W]e give

4    particular deference to [credibility determinations] that

5    are based on the adjudicator’s observation of the

6    applicant’s demeanor,” particularly “where, as here, [the

7    observations] are supported by specific examples of

8    inconsistent testimony.”   Li Hua Lin v. U.S. Dep’t of

9    Justice, 453 F.3d 99, 109 (2d Cir. 2006).   The record

10   supports the IJ’s observations that Weng was not “an

11   entirely cooperative witness, even with his own counsel,”

12   that he answered questions with questions, asked for

13   questions to be repeated or was unresponsive, and that his

14   testimony became vague on cross-examination.

15       Given the multiple inconsistencies, the implausible

16   testimony, the lack of reliable corroboration, and the

17   demeanor finding, the “totality of the circumstances,”

18   supports the adverse credibility determination.     Xiu Xia

19   Lin, 534 F.3d at 167.   That determination is dispositive of

20   asylum, withholding of removal, and CAT relief because all

21   claims are based on the same factual predicate.     See Paul

22   v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

                                   9
1       For the foregoing reasons, the petition for review is

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

3   that the Court previously granted in this petition is VACATED,

4   and any pending motion for a stay of removal in this petition

5   is DISMISSED as moot.

6                               FOR THE COURT:
7                               Catherine O’Hagan Wolfe,
8                               Clerk of Court




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