     15-1196
     Weng v. Lynch
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A201 035 132
                          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   22nd day of April,two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            PETER W. HALL,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   LIN BIN WENG, AKA LINBIN WENG,
15            Petitioner,
16
17                   v.                                              15-1196
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Lewis G. Hu, New York, New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Deputy Assistant
27                                       Attorney General; Francis Fraser,
28                                       Senior Litigation Counsel; Kate D.
29                                       Balaban, 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 is

 4   DENIED.

 5          Petitioner Lin Bin Weng, a native and citizen of China,

 6   seeks review of a March 25, 2015 decision of the BIA affirming

 7   a December 17, 2012 decision of an Immigration Judge (“IJ”)

 8   denying Weng‟s application for asylum, withholding of removal,

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

10   re Lin Bin Weng, No. A201 035 132 (B.I.A. Mar. 25, 2015), aff’g

11   No. A201 035 132 (Immig. Ct. N.Y.C. Dec. 17, 2012).                  We assume

12   the    parties‟      familiarity    with    the    underlying     facts    and

13   procedural history in this case.

14          In the circumstances of this case, we consider both the IJ‟s

15   and    the   BIA‟s    opinions     “for    the    sake   of   completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).         The    applicable     standards      of   review      are   well

18   established.        See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

19   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20          Under the REAL ID Act of 2005, the agency may, in light of

21   “the     totality     of   the   circumstances,”         base   an    adverse

22   credibility determination on an asylum applicant‟s “demeanor,

23   candor, or responsiveness,” the plausibility of her account,

                                           2
 1   and inconsistencies in her statements, “without regard to

 2   whether”     those     inconsistencies       go    “to   the   heart   of    the

 3   applicant‟s claim.”          8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin

 4   v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).                      Under the

 5   “substantial evidence” standard of review, “we defer . . . to

 6   an IJ‟s credibility determination unless, from the totality of

 7   the circumstances, it is plain that no reasonable fact-finder

 8   could make such an adverse credibility ruling.”                  Xiu Xia Lin,

 9   534 F.3d at 167.

10          The agency‟s adverse credibility determination against

11   Weng    is    sound.          The     agency      justifiably     relied     on

12   inconsistencies between what she said at an interview with

13   border patrol agents and her asylum application.                 “We exercise

14   caution when reviewing statements made within the context of

15   airport interviews, recognizing that because such interviews

16   „may be perceived . . . as coercive or threatening,‟ aliens may

17   „not be entirely forthcoming in the initial interview.‟”

18   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir. 2005)

19   (quoting Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.

20   2004)); see also Ming Zhang v. Holder, 585 F.3d 715, 724-25 (2d

21   Cir.    2009)    (requiring         close   scrutiny     of    credible     fear

22   interviews, but deeming reliable one that was typewritten,

23   conducted       with    an    interpreter,        demonstrated     that      the

                                             3
 1   interviewee understood the questions).

 2       Here, the agency was entitled to credit Weng‟s border

 3   patrol interview.     Weng signed each page of the interview

 4   transcript.   The questions, posed in Weng‟s native Mandarin,

 5   were open-ended and “designed to elicit the details of an asylum

 6   claim,” Ramsameachire, 357 F.3d at 180 (internal quotation

 7   marks   omitted).     They   include,   “Do   you   fear   torture,

 8   persecution, or harm from the Chinese Government if you are

 9   removed to China?”    At the merits hearing, Weng confirmed that

10   she understood the questions asked during the border interview.

11   In her brief, Weng argues that she cannot be blamed for omitting

12   mention of the forced abortion because the officer did not ask

13   “why or on what basis did she apply for political asylum.”     But

14   that argument is merely semantic; the officer asked a more

15   open-ended question regarding why she feared harm from the

16   Chinese government.

17       During the interview, Weng failed to mention that family

18   planning officials forcibly aborted her pregnancy.         Instead,

19   she asserted religious persecution as grounds for her asylum

20   claim, grounds that she dropped in her asylum application.       In

21   finding that Weng was not credible, the IJ was entitled to “rely

22   on the commonsense observation that it is inconsistent for a

23   petitioner to respond to the same question about the nature of

                                     4
 1   his asylum claim with two entirely different responses.”

 2   Yun-Zui Guan, 432 F.3d at 398.        Moreover, for the purpose of

 3   assessing credibility, an omission is the functional equivalent

 4   of an inconsistency.     Xiu Xia Lin, 534 F.3d at 166 n.3.

 5       Weng‟s explanations for having omitted mention of the

 6   forced abortion varied: first, she said that “there were many

 7   people waiting to be questioned,” and that she described the

 8   incident with the neighbor because it was more recent.        She said

 9   she “did not get a chance to mention” the abortion.          She also

10   said (as transcribed) that in her “subconscious I don‟t to

11   mention that” because she does not “like to mention the abortion

12   incident to other people.”       Some of these explanations may be

13   plausible; but none would compel a reasonable adjudicator to

14   credit it.   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

15   (stating   that   the   agency   is   not   required   to   credit   an

16   explanation that is merely plausible).         When the interviewer

17   asked whether she had anything else to say, Weng responded,

18   “No.”

19       Weng argues that the IJ misinterpreted her explanations.

20   The IJ professed to be confused by Weng‟s statement that she

21   did not mention the abortion due to her “self-conscience.”           The

22   transcript says “subconscious.”        In her brief, Weng explains

23   that she felt “self-conscious” about discussing the abortion

                                       5
 1   in front of other people, and argues that the IJ should have

 2   known that there was a translation error.    But the IJ was not

 3   obligated to draw that inference.       “Where there are two

 4   permissible views of the evidence, the factfinder‟s choice

 5   between them cannot be clearly erroneous.”   Siewe v. Gonzales,

 6   480 F.3d 160, 167 (2d Cir. 2007) (quoting Anderson v. Bessemer

 7   City, 470 U.S. 564, 574 (1985)).   In any event, confusion over

 8   Weng‟s phrasing was not the only basis for the IJ‟s rejection

 9   of Weng‟s explanation: as the IJ noted, Weng‟s explanations

10   varied each time she was questioned about the omission.

11       The IJ also cited an inconsistency between Weng‟s border

12   patrol interview and application.      At the interview, Weng

13   alleged that she feared persecution “because of my religion.”

14   Her asylum application said nothing about religion, and at her

15   merits hearing she disclaimed any problems arising from her

16   religion.   Absent from Weng‟s brief is any argument about this

17   inconsistency.   The agency reasonably relied on it in finding

18   her not to be credible.   Yun-Zui Guan, 432 F.3d at 398.

19       Given the omission from Weng‟s border patrol interview and

20   the inconsistencies between it and her asylum application, the

21   totality of the circumstances supports the agency‟s adverse

22   credibility determination.    Weng‟s applications for asylum,

23   withholding of removal, and CAT relief were based on the same

                                    6
 1   factual predicate, and so the adverse credibility determination

 2   is dispositive as to all three.       See Paul v. Gonzales, 444 F.3d

 3   148, 156-57 (2d Cir. 2006).

 4       For the foregoing reasons, the petition for review is

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

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

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

 8   is DISMISSED as moot.    Any pending request for oral argument

 9   in this petition is DENIED in accordance with Federal Rule of

10   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O=Hagan Wolfe, Clerk




                                       7
