         13-426
         Wen v. Lynch
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A094 800 765
                         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 February, two thousand sixteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       ZAI YUAN WEN,
14                Petitioner,
15
16                      v.                                      13-426
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Thomas V. Massucci, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Anthony W. Norwood, Senior
27                                     Litigation Counsel; Kathryn L.
28                                     Deangelis, 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   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Zai Yuan Wen, a native and citizen of China, seeks

 6   review of a January 22, 2013 decision of the BIA affirming

 7   an Immigration Judge’s (“IJ”) September 1, 2011 denial of

 8   asylum, withholding of removal, and relief under the

 9   Convention Against Torture (“CAT”).     In re Zai Yuan Wen, No.

10   A094 800 765 (B.I.A. Jan. 22, 2013), aff’g No. A094 800 765

11   (Immig. Ct. N.Y. City Sept. 1, 2011).    We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history of this case.

14       Under the circumstances of this case, we have reviewed

15   both the IJ’s and the BIA’s opinions “for the sake of

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

17   2008).   The applicable standards of review are well

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

19   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

20       For applications, like Wen’s, governed by the REAL ID

21   Act, the agency may, “[c]onsidering the totality of the

22   circumstances,” base a credibility finding on an asylum

23   applicant’s demeanor, the plausibility of his account, and

                                     2
 1   inconsistencies in his statements and other record evidence

 2   “without regard to whether” they go “to the heart of the

 3   applicant’s claim.”   8 U.S.C. §§ 1158(b)(1)(B)(iii),

 4   1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 163-64.    Here,

 5   substantial evidence supports the agency’s decision.

 6       In making the credibility determination, the IJ

 7   reasonably relied in part on Wen’s demeanor, noting that he

 8   was unresponsive and vague when answering questions about

 9   his membership in the Chinese Democracy and Justice Party

10   (“CDJP”).   Particular deference is given to the trier of

11   fact’s assessment of demeanor.    Majidi v. Gonzales, 430 F.3d

12   77, 81 n.1 (2d Cir. 2005).   And here, the hearing transcript

13   supports this finding, showing that Wen initially failed to

14   respond to questions, or gave conflicting answers about the

15   CDJP section to which he belonged.    Zhou Yun Zhang v. U.S.

16   INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other

17   grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d

18   296 (2d Cir. 2007) (stating that we defer to an IJ’s

19   demeanor finding when it is supported by facts in the

20   record); cf. Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir.

21   2006) (holding that, although “doctrinal knowledge” of a

22   religion is not required in order to accept an asylum


                                   3
 1   applicant’s testimony, lack of knowledge, combined with

 2   other indicia that the applicant is not credible, can be

 3   held against an applicant).

 4       The demeanor finding is further supported by specific

 5   inconsistencies identified by the IJ.    See Li Hua Lin v.

 6   U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

 7   Wen’s testimony significantly differed from his asylum

 8   application.    Wen stated in his application that, as

 9   punishment for assisting North Korean refugees, he was

10   sentenced to 15 days’ detention, fined 5000 yen, and

11   threatened to one year of education through labor, but he

12   did not mention the fine or labor threat in his testimony.

13   Wen stated in his application that he was in a “brotherhood”

14   in China and contributed ten percent of his salary to assist

15   North Korean refugees, but testified that he did not belong

16   to any groups in China, and omitted any mention of financial

17   assistance.    Wen claimed in his application that he worked

18   with North Korean refugees in 2006, but testified that he

19   had no knowledge of North Koreans working at his factory

20   after 2002.

21       Wen’s testimony also conflicted with his passport,

22   which he provided at his initial hearing.    That passport

23   contained immigration stamps from Malaysia dated May 2006.

                                    4
 1   However, Wen testified that he departed China in May 2006

 2   with a valid Chinese passport, but used a Korean passport to

 3   enter Malaysia.

 4       Wen also gave inconsistent statements regarding his

 5   detention for assisting the refugees.     He offered varying

 6   accounts regarding how he became involved with the refugees,

 7   how many of them were housed together and escaped together,

 8   and what year his detention ended.     Wen first testified that

 9   he was released in 2002, and then that he was released in

10   2006.   When questioned about this inconsistency, he

11   corrected his statement, explaining that he “said it wrong,”

12   but the agency was not required to accept that explanation.

13   See Majidi, 430 F.3d at 80-81.

14       Having reasonably questioned Wen’s credibility, the

15   agency did not err in relying on his failure to provide

16   corroborating evidence.   Biao Yang v. Gonzales, 496 F.3d

17   268, 273 (2d Cir. 2007) (per curiam).     Upon remand, the IJ

18   requested that Wen provide evidence that public security

19   officials visited his parents in July 2007 in an effort to

20   convince him to withdraw from the CDJP, and additional

21   evidence of his CDJP involvement.    Wen failed to do so, and

22   had no explanation for this failure.

23
                                   5
 1       Given the demeanor finding, the lack of corroboration,

 2   and the discrepancies in Wen’s testimony, particularly those

 3   regarding his detention and support for North Korean

 4   refugees, substantial evidence supports the adverse

 5   credibility determination.   See Xian Tuan Ye v. DHS, 446

 6   F.3d 289, 295-96 (2d Cir. 2006) (per curiam).   Because

 7   credibility is dispositive of withholding, we do not reach

 8   Wen’s arguments regarding future persecution or nexus.      See

 9   INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general

10   rule courts and agencies are not required to make findings

11   on issues the decision of which is unnecessary to the

12   results they reach.”).

13       Wen did not preserve his challenge to the IJ’s denial

14   of the CAT claim, and we decline to consider it.

15       For the foregoing reasons, the petition for review is

16   DENIED. The pending motion for a stay of removal is

17   DISMISSED as moot.   Any pending request for oral argument in

18   this petition is DENIED in accordance with Federal Rule of

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

20   34.1(b).

21                                FOR THE COURT:
22                                Catherine O’Hagan Wolfe, Clerk
23




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