         09-2624-ag
         Weng v. Holder
                                                                                       BIA
                                                                                DeFonzo, IJ
                                                                               A095 716 343
                            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 27 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       MIN WENG,
14                        Petitioner,
15
16                         v.                                   09-2624-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:                 Tony West, Assistant Attorney
26                                       General, Civil Division; Christopher
27                                       C. Fuller, Senior Litigation
28                                       Counsel; Ann Carroll Varnon,
29                                       Attorney, Office of Immigration
30                                       Litigation, United States Department
31                                       of Justice, 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        Min Weng, a native and citizen of the People’s Republic

6    of China, seeks review of a May 28, 2009, order of the BIA,

7    affirming the September 5, 2007, decision of Immigration

8    Judge (“IJ”) Paul A. DeFonzo, which denied her application

9    for asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Min Weng, No.

11   A095 716 343 (B.I.A. May 28, 2009), aff’g No. A095 716 343

12   (Immig. Ct. N.Y. City Sept. 5, 2007).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we review the

16   IJ’s decision, including the portions not explicitly

17   discussed by the BIA.   Yun-Zui Guan v. Gonzales, 432 F.3d

18   391, 394 (2d Cir. 2005).   The applicable standards of review

19   are well-established.   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia

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

21       As an initial matter, because Weng failed to challenge

22   the quality of the transcript in her appeal to the BIA, and

23   because the Government has raised this failure to exhaust in

                                   2
1    its brief to this Court, we decline to consider this issue.

2    Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d

3    Cir. 2007) (describing the issue exhaustion requirement as

4    an “affirmative defense subject to waiver”). Moreover, as

5    the government has pointed out, because Weng withdrew her

6    CAT claim during her proceedings before the IJ, and did not

7    challenge the denial of CAT relief before the BIA, we deem

8    her arguments regarding CAT relief abandoned.   See Gui Yin

9    Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).

10   Accordingly, the only claims addressed here are Weng’s

11   challenges to the denial of asylum and withholding of

12   removal based on the IJ’s adverse credibility determination.

13       Under the REAL ID Act, which applies to Weng’s

14   application for relief, “an IJ may rely on any inconsistency

15   or omission in making an adverse credibility determination

16   as long as the ‘totality of the circumstances’ establishes

17   that an asylum applicant is not credible.”   Xiu Xia Lin v.

18   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see Matter of J-

19   Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007) (finding that “the

20   REAL ID Act no longer requires the trier of fact to find a

21   nexus between inconsistencies and the ‘heart of the

22   claim’”).


                                  3
1           Substantial evidence supports the IJ’s adverse

2    credibility determination.     See Xiu Xia Lin, 534 F.3d at

3    167.    The IJ found Weng not credible because: (1) she

4    claimed at her airport interview that she was pregnant, but

5    thereafter claimed at her credible fear interview and in her

6    asylum application that she had been forced to undergo an

7    abortion; (2) she failed to provide reasonably available

8    corroborating evidence; (3) a letter from her boyfriend did

9    not provide any details to corroborate her claim; and (4)

10   her explanation regarding how she obtained her abortion

11   certificate was implausible.     We are not compelled to find

12   error in any of these findings, or in the IJ’s refusal to

13   credit the explanations Weng offered.     See Majidi v.

14   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).     Because Weng

15   was not otherwise credible, the IJ was not required to

16   afford her further opportunities to explain before finding

17   that the absence of letters from her family members rendered

18   her unable to rehabilitate her questionable testimony.        See

19   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d

20   Cir. 2006).    Moreover, the IJ reasonably accorded little

21   evidentiary weight to both the letter from Weng’s boyfriend

22   and her abortion certificate, because the IJ also relied on


                                     4
1    the facts that there was inconsistent testimony regarding

2    the abortion certificate and the boyfriend’s letter did not

3    actually mention a forced abortion. See id. at 342; see also

4    Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-05

5    (2d Cir. 2005) (holding that an IJ may not reject an asylum-

6    seeker’s document solely because the document was not

7    authenticated pursuant to 8 C.F.R. § 287.6) (emphasis

8    added).

9        Because Weng’s statement at her airport interview,

10   coupled with the discrepancies regarding her corroborating

11   evidence, provides ample support for the IJ’s adverse

12   credibility determination, we need not reach the IJ’s

13   additional findings of inconsistencies within Weng’s

14   testimony and asylum application.   Accordingly, the agency’s

15   denial of Weng’s application for asylum and withholding of

16   removal was proper.   See Paul v. Gonzales, 444 F.3d 148, 156

17   (2d Cir. 2006).

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

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

23   oral argument in this petition is DENIED in accordance with
                                   5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5




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