10-1787-ag
Weng v. Holder
                                                                                BIA
                                                                             Hom, IJ
                                                                        A094 938 603
                   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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 1st day of September, two thousand eleven.

PRESENT:
         JON O. NEWMAN,
         JOSÉ A. CABRANES,
         RAYMOND J. LOHIER, JR.,
              Circuit Judges.
_____________________________________

PING WENG
                 Petitioner,

                 v.                                                10-1787-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                 Adedayo O. Idowu, New York, N.Y.

FOR RESPONDENT:                 Tony West, Assistant Attorney General;
                                Ethan B. Kanter, Senior Litigation
                                Counsel;    Paul   F.   Stone,   Trial
                                Attorney,    Office   of   Immigration
                                Litigation, United States Department
                                of Justice, Washington, D.C.
       UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

       Petitioner   Ping   Weng,   a     native    and   citizen   of   the

People’s Republic of China, seeks review of an April 8, 2010,

order of the BIA, affirming the May 14, 2008, decision of

Immigration    Judge   (“IJ”)      Sandy    Hom,     which     denied   her

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).                  In re Ping

Weng, No. A094 938 603 (B.I.A. Apr. 8, 2010), aff’g No. A094

938 603 (Immig. Ct. N.Y. City May 14, 2008).                 We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

       Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA decision, i.e., minus

the arguments for denying relief that were rejected by the

BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

520, 522 (2d Cir. 2005).      The applicable standards of review

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

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

applications governed by the REAL ID Act of 2005, the agency

may, considering the totality of the circumstances, base a

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credibility finding on an asylum applicant’s demeanor, the

plausibility     of    his   account,       and     inconsistencies     in   his

statements, without regard to whether they go “to the heart of

the applicant’s claim.”          8 U.S.C. § 1158(b)(1)(B)(iii); see

also Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).

Analyzed    under      the   REAL     ID     Act,    the    agency’s    adverse

credibility      determination        is      supported      by     substantial

evidence.

     In finding Weng’s testimony not credible, the IJ relied

in   part   on   her      demeanor,        noting    that    her    “hesitant,”

“repetitive,”       and      “nonresponsive”          testimony      gave    the

impression that she was “simply reciting from a script rather

than giving testimony of a person having experienced life-

changing circumstances and events.” Because the IJ was in the

best position to observe Weng’s manner while testifying, we

afforded this finding particular deference.                        See Zhou Yun

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

other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494

F.3d 296 (2d Cir. 2007). The record reflects that Weng paused

during her testimony, and on one occasion was mumbling to

herself. Although Weng submits that an interpretation problem

may have caused her slow responses, we decline to address the


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argument in the first instance, because, as the Government

argues, Weng failed to raise this argument before the BIA.

See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d

Cir. 2007).       Moreover, because the agency identified other

reasons to doubt Weng’s testimony, we rely more confidently on

the IJ’s demeanor finding.           See Li Hua Lin v. U.S. Dep’t of

Justice, 453 F.3d 99, 109 (2d Cir. 2006).                Accordingly, the

IJ’s demeanor finding was not erroneous.

      In finding Weng not credible, the agency also reasonably

relied on an inconsistency in her testimony as to whether she

used her own passport to depart China.                See Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). Under

the   REAL   ID   Act,   an    adverse     credibility   finding   may   be

supported by inconsistencies in an alien’s testimony, even

when those inconsistencies are not central to the applicant’s

claim.   See 8 U.S.C. § 1158(b)(1)(B)(iii).              Weng argues that

her testimony was not inconsistent, because she explained that

she fled to Hong Kong using the documents arranged by the

smuggler, but left Hong Kong using her own passport. However,

the   agency      did    not   err   in     finding    Weng’s   testimony

inconsistent, as this explanation is insufficient to resolve

the inconsistencies in her testimony and would not necessarily


                                     -4-
be compelling to a reasonable factfinder.            See Majidi v.

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

      The agency also reasonably found implausible that Weng

was a fugitive from the Chinese police but was able to depart

China without difficulty, and, according to her final version

of events, using her own passport.           Weng argues that her

ability to depart from Hong Kong with her own passport does

not undermine her credibility.         Again, however, her explana-

tion would not be compelling to a reasonable factfinder.          See

id.

      Lastly, the agency reasonably noted that Weng’s failure

to provide a document she claimed Chinese police had served on

her parents further undermined her credibility.        See 8 U.S.C.

§ 1158(b)(1)(B)(ii).     Although Weng argues that it would have

been difficult for her illiterate parents to deliver this

document from China, the agency did not err finding that her

failure   to   produce   this   document   further   undermined   her

credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

Cir. 2007) (holding that the agency may rely on a lack of

corroborative evidence where an applicant’s testimony is not

otherwise credible); Majidi, 430 F.3d at 80-81.




                                 -5-
    Ultimately, because a reasonable fact-finder would not be

compelled to conclude to the contrary, the IJ’s adverse

credibility      determination    was    supported    by   substantial

evidence, and the agency’s denial of Weng’s application for

asylum, withholding of removal, and CAT relief was not in

error as all three claims shared the same factual predicate.

See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006)

(withholding of removal); Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 523 (2d Cir. 2006) (CAT).                  To the

extent that Weng claims to fear torture due to her illegal

departure from China, we decline to address this claim because

Weng did not exhaust it before the BIA.         See Lin Zhong v. U.S.

Dep’t     of   Justice,   480   F.3d    104,   122   (2d   Cir.   2007).

Regardless, because Weng fails to point to any evidence in

support of her illegal departure claim, it is without merit.

See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160.

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot.       Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

                                  -6-
Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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