     13-4764
     Feng v. Lynch
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A095 941 034
                          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   6th day of July, two thousand fifteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            DEBRA ANN LIVINGSTON,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   YUEWEN FENG,
14            Petitioner,
15
16                   v.                                              13-4764
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,1
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Guang Jun Gao, Law Offices of Guang
24                                       Jun Gao, LLP, Flushing, New York.
25

     1
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Loretta E. Lynch is automatically substituted for former
     Attorney General Eric H. Holder, Jr.
1    FOR RESPONDENT:            Joyce R. Branda, Acting Assistant
2                               Attorney General; Stephen J. Flynn,
3                               Assistant Director; Lynda A. Do,
4                               Attorney, Office of Immigration
5                               Litigation, United States
6                               Department of Justice, Washington,
7                               D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED that the petition for review is

12   DENIED.

13       Petitioner Yuewen Feng, a native and citizen of the

14   People’s Republic of China, seeks review of a December 4, 2013,

15   decision of the BIA, affirming the October 19, 2012, decision

16   of an Immigration Judge (“IJ”), denying his application for

17   asylum, withholding of removal, and relief under the Convention

18   Against Torture (“CAT”).   In re Yuewen Feng, No. A095 941 034

19   (B.I.A. Dec. 4, 2013), aff’g No. A095 941 034 (Immig. Ct. N.Y.

20   City Oct. 19, 2012).   We assume the parties’ familiarity with

21   the underlying facts and procedural history in this case.

22       Under the circumstances of this case, we have considered

23   both the IJ’s and the BIA’s opinions.   Zaman v. Mukasey, 514

24   F.3d 233, 237 (2d Cir. 2008) (per curiam) (quoting Wangchuck

25   v. DHS, 448 F.3d 524, 528 (2d Cir. 2006)).      The applicable
                                   2
1    standards of review are well established.                   See 8 U.S.C.

2    § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

3    (2d Cir. 2008) (per curiam).            For asylum applications like

4    Feng’s,   governed   by    the   REAL     ID   Act,   the   agency   may,

5    “[c]onsidering the totality of the circumstances,” base a

6    credibility determination on inconsistencies in an applicant’s

7    statements   and   other   record       evidence   “without   regard   to

8    whether” they go “to the heart of the applicant’s claim.”

9    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

10   The agency’s adverse credibility determination is based on

11   substantial evidence.

12       The IJ reasonably relied on multiple discrepancies among

13   Feng’s testimony, his asylum application, and his adjustment

14   application, all of which called into question whether Feng was

15   actually in China at the time of the alleged persecution.

16   Feng’s asylum application listed him as living in China from

17   his birth in 1969 until 2009 when he fled to the United States.

18   But at his hearing, he acknowledged the falsity of that

19   statement and testified that he first entered the United States

20   in December 1998, lived in Puerto Rico for five years, returned

21   to China in 2004, and reentered the United States (without
                                         3
1    inspection) in 2009.    When asked to explain, Feng first stated

2    that a law firm filled out the application without his

3    knowledge.    Then,    after   admitting   that   he   provided   his

4    background information to the firm, Feng stated he did not know

5    why his asylum application omitted his five years in Puerto

6    Rico.   The IJ was entitled to rely on the discrepancy in making

7    an adverse credibility determination, see Xiu Xia Lin, 534 F.3d

8    at 163-64, and was not required to accept Feng’s explanation,

9    see Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

10       Feng also testified that he applied for adjustment of

11   status in Puerto Rico in 1998; however, Feng admitted that he

12   denied ever filing for any immigration benefits during his

13   interview with an asylum officer.     Feng also admitted that his

14   adjustment   application   itself    contained    false   statements

15   regarding when he entered Puerto Rico.     Feng acknowledged that

16   his application listed an earlier entry date in order to obtain

17   the two years of residency necessary to adjust status, but at

18   the same time insisted that he knew nothing about the adjustment

19   application because it was filled out by another person.          The

20   IJ was not required to credit this attempt to shift the

21   responsibility for false information.      See Majidi, 430 F.3d at
                                      4
1    80-81.    Because Feng admitted to lying on multiple occasions

2    to obtain immigration benefits and because his false statements

3    call into question his presence in China during the relevant

4    periods, the IJ reasonably relied on the false statements to

5    find Feng incredible.     See Siewe v. Gonzales, 480 F.3d 160, 170

6    (2d Cir. 2007); see also Xiu Xia Lin, 534 F.3d at 167.

7    Accordingly,    because   all    of       Feng’s      claims   rely   on   his

8    credibility,    the   agency    did       not   err    in   denying   asylum,

9    withholding of removal, and CAT relief because those claims were

10   based on the same factual predicate.            Paul v. Gonzales, 444 F.3d

11   148, 156-57 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition is

15   VACATED, and any pending motion for a stay of removal in this

16   petition is DISMISSED as moot.            Any pending request for oral

17   argument in this petition is DENIED in accordance with Federal

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

19   Rule 34.1(b).

20                                    FOR THE COURT:
21                                    Catherine O=Hagan Wolfe, Clerk

                                           5
