         12-3165
         Weng v. Holder
                                                                                        BIA
                                                                                 Laforest, IJ
                                                                               A089 844 486
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of December, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YU GANG WENG,
14                Petitioner,
15
16                        v.                                    12-3165
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Vlad Kuzmin, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Leslie Mckay,
27                                     Assistant Director; Anthony J.
28                                     Messuri, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Yu Gang Weng, a native and citizen of the People’s

 6   Republic of China, seeks review of a July 13, 2012, decision

 7   of the BIA affirming the January 11, 2011, decision of

 8   Immigration Judge (“IJ”) Brigitte Laforest, which denied his

 9   application for asylum, withholding of removal, and relief

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

11   Weng, No. A089 844 486 (B.I.A. July 13, 2012), aff’g No.

12   A089 844 486 (Immig. Ct. N.Y. City Jan. 11, 2011).      We

13   assume the parties’ familiarity with the underlying facts,

14   procedural history, and issues presented for review.

15       Under the circumstances of this case, we consider both

16   the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008).   The applicable standards of review are well-

19   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

20   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       For asylum applications, such as Weng’s, governed by

22   the amendments to the Immigration and Nationality Act by the

23   REAL ID Act of 2005, the agency may, “[c]onsidering the

                                     2
 1   totality of the circumstances,” base a credibility finding

 2   on any inconsistencies in the applicant’s statements,

 3   without regard to whether the inconsistencies go “to the

 4   heart of the applicant’s claim.”     See 8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 6   167 (2d Cir. 2008) (per curiam).

 7       The agency’s adverse credibility determination is

 8   supported by substantial evidence.    The IJ reasonably found

 9   that Weng was not credible because, inter alia, his hearing

10   testimony (1) was internally inconsistent as to the length

11   of his detention (ranging from ten days to twelve days to

12   twenty days); (2) contradicted his written declaration and

13   other documentary evidence as to the length of his

14   detention; (3) conflicted with four written statements from

15   others as to the date of his release from detention; and (4)

16   contradicted medical records as to when he needed medical

17   attention for injuries he allegedly suffered in detention.

18   Although Weng offered explanations for the inconsistencies

19   and contradictions, Weng did not demonstrate that the agency

20   was required to credit his explanations, see Majidi v.

21   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (to secure

22   relief, a petitioner must demonstrate that a reasonable


                                  3
 1   fact-finder would be compelled to credit his testimony), and

 2   we are not able to consider one of his explanations in any

 3   event because he failed to present it to the agency, see Lin

 4   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-22 (2d

 5   Cir. 2007) (“[W]hen an applicant for asylum or withholding

 6   of removal has failed to exhaust an issue before the BIA,

 7   and that issue is, therefore, not addressed in a reasoned

 8   BIA decision, we are . . . usually unable to review the

 9   argument.”).

10       Weng argues that the discrepancies which the agency

11   relied on are minor and isolated.   While it is true that, in

12   some cases, minor and isolated discrepancies about dates

13   would not render an applicant incredible, see Xiu Xia Lin,

14   534 F.3d at 167, here, the discrepancies in Weng’s testimony

15   were not minor or isolated as they related to the central

16   elements of his claim -- that he was detained in China for

17   his practice of Falun Gong and that he continues to practice

18   Falun Gong in the United States -- and pervade his

19   testimony.

20       Accordingly, as the record contains substantial

21   evidence to support the agency’s adverse credibility

22   determination, Xiu Xia Lin, 534 F.3d at 167, and as the only


                                  4
 1   evidence of a threat to Weng’s life or freedom depended upon

 2   his credibility, the adverse credibility determination in

 3   this case is dispositive of his claims for asylum,

 4   withholding of removal, and CAT relief, see Paul v.

 5   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

 6   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

 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 DENIED 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




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