16-3102 

Wei v. Sessions

BIA 

Loprest, IJ 

A205 235 591

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.

At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

22nd day of February, two thousand eighteen. 

PRESENT: 

ROBERT A. KATZMANN, 

Chief Judge, 

PETER W. HALL, 

DENNY CHIN,

Circuit Judges. 

_____________________________________ 

YANJUN WEI, 

Petitioner, 

v. 16-3102 

 NAC 

JEFFERSON B. SESSIONS III, 

UNITED STATES ATTORNEY GENERAL, 

Respondent. 

_____________________________________ 

FOR PETITIONER: Thomas V. Massucci, New York, NY. 

FOR RESPONDENT: Chad A. Readler, Acting Assistant 

Attorney General; Russell J. E. 
2

Verby, Senior Litigation Counsel; 

John D. Williams, Trial Attorney, 

Office of Immigration Litigation, 

United States Department of Justice, 

Washington, DC. 

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 Yanjun Wei, a native and citizen of the People’s 

Republic of China, seeks review of an August 29, 2016, decision 

of the BIA affirming an October 5, 2015, decision of an 

Immigration Judge (“IJ”) denying Wei’s application for asylum, 

withholding of removal, and relief under the Convention Against 

Torture (“CAT”). 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 

adverse credibility determination as modified by the BIA. See

Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The 

standards of review are well established. See 8 U.S.C. 

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

2008). The agency may, “[c]onsidering the totality of the 
3

circumstances,” base a credibility finding on an asylum 

applicant’s “demeanor, candor, or responsiveness,” “the 

plausibility of the . . . account,” and inconsistencies in her 

statements and other evidence, “without regard to whether an 

inconsistency, inaccuracy, or falsehood goes to the heart of 

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

534 F.3d at 163-64. Substantial evidence supports the agency’s 

determination that Wei was not credible. 

 Wei’s testimony is inconsistent as to whether her mother 

was aware of her Falun Gong practice. Compare App. 117 (“Only 

my husband know.”), with App. 135 (“my mother aware of it”). 

To the extent that she denied her mother’s knowledge, moreover, 

it was reasonable for the agency to find that testimony 

implausible given that her mother lived with Wei in a small home 

in which Wei claimed to practice Falun Gong for one to two hours 

per day. Although Wei explained that her mother went for a walk 

every time Wei practiced Falun Gong, the IJ was not required 

to accept that explanation. See Majidi v. Gonzales, 430 F.3d 

77, 80 (2d Cir. 2005). 
4

The agency also did not err in concluding that Wei’s 

testimony about her arrest undermined her claim. Wei testified 

that the police handcuffed her and then ordered her to put on 

her coat. Although a minor point, the IJ was not precluded from 

relying on the implausibility of the police telling Wei to put 

on an article of clothing after they had handcuffed her. 

Although Wei contends that handcuffed persons often wear coats 

thrown over their heads or upper bodies, the IJ’s skepticism 

of her testimony was based on a plain reading of the record, 

and “[d]ecisions as to . . . which of competing inferences to 

draw are entirely within the province of the trier of fact.” 

Delmage v. Corio, 232 F.3d 38, 44 (2d Cir. 2000). 

 The agency’s demeanor findings, to which “[w]e give 

particular deference,” further support the adverse credibility 

determination. Chen v. DOJ, 426 F.3d 104, 113 (2d Cir. 2005). 

The record supports the conclusion that Wei became hesitant and 

nonresponsive on cross-examination, requiring the attorney to 

repeat questions to elicit direct and complete answers. 

 Moreover, Wei failed to resolve her credibility issues with 

reliable corroboration of either her Falun Gong practice or past 
5

persecution. See Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 

2007). The IJ reasonably gave diminished weight to a discharge 

letter from Wei’s previous employer and a detention notice from 

the Kaifeng Municipal Public Security Bureau because the 

drafters were unavailable for cross examination and the 

documents were unauthenticated. And the only evidence of Wei’s 

Falun Gong practice was a letter from a friend and photographs 

of Wei posing in various unidentified positions. See Y.C. v. 

Holder, 741 F.3d 324, 334 (2d Cir. 2013). 

 We note that the agency erred in finding that Wei was unable 

to explain how the police became aware of her Falun Gong practice 

given her testimony that a residential committee member 

reported her activities. In addition, the agency erred in 

finding that Wei was not consistent as to the day on which she 

was arrested, as there is no contradiction between her arrest 

on a Saturday and her testimony that she worked that day. Her 

testimony makes clear that although she generally worked Monday 

to Friday, she also worked on weekends when necessary. But 

given (1) the inconsistency and implausibility of her testimony 

concerning her mother’s knowledge about her Falun Gong 
6

practice; (2) the demeanor finding; and (3) Wei’s lack of 

reliable corroborating evidence, substantial evidence supports 

the agency’s adverse credibility determination. The errors do 

not mandate remand because “the agency’s ultimate ruling . . . 

is supported by the substantial evidence and it is clear that 

the same decision would be made on remand.” Li v. Lynch, 839 

F.3d 144, 149-50 (2d Cir. 2016). The adverse credibility 

determination is dispositive of asylum, withholding of removal, 

and CAT relief because all three claims are based on the same 

factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 

(2d Cir. 2006). 

 For the foregoing reasons, the petition for review is 

DENIED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court