12-3005 Weng v. Holder BIA Hom, IJ A093 354 119 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 28 th** **day of October, two thousand fourteen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **PETER W. HALL,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **XIAO-YING WENG,** 13 Petitioner**,** 14 15 **v. 12-3005** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, Yerman & Associates,** 23 **LLC, New York, NY.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Leslie McKay,** 27 **Assistant Director; Sara J. Bergene,** 28 **Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 32UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DISMISSED in part and in part DENIED. 4 Petitioner Xiao-Ying Weng, a native and citizen of 5 China, seeks review of a July 11, 2012, order of the BIA, 6 denying her motion to remand and affirming the December 10, 7 2010, decision of an Immigration Judge (“IJ”), which 8 pretermitted her application for asylum and denied 9 withholding of removal and relief under the Convention 10 Against Torture (“CAT”). In re Xiao-Ying Weng, No. A093 354 11 119 (B.I.A. July 11, 2012), aff’gNo. A093 354 119 (Immig. 12 Ct. New York City Dec. 10, 2010). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we review the 16 decisions of both the IJ and the BIA.See Yun-Zui Guan v. 17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). 18 The applicable standards of review are well-established. 19
See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. 20 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). 21

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2I. Pretermission of Asylum 1 Title 8, Section 1158(a)(3) of the United States Code 2 provides that no court shall have jurisdiction to review the 3 agency’s finding that an asylum application was untimely 4 under 8 U.S.C. § 1158(a)(2)(B). However, we retain 5 jurisdiction to review constitutional claims and “questions 6 of law.” 8 U.S.C. § 1252(a)(2)(D). 7 Weng’s challenges to the agency’s pretermission of 8 asylum do not raise reviewable constitutional claims or 9 questions of law. See Xiao Ji Chen v. U.S. Dep’t of 10 Justice , 471 F.3d 315, 329 (2d Cir. 2006). Although Weng 11 correctly notes that the agency confused her alleged date of 12 departure from China with her alleged date of arrival in the 13 United States, this error was harmless and does not 14 constitute fact-finding that is flawed by an error of law 15 because the agency reasonably determined that Weng had not 16 established her arrival on any date within one year of her 17 application’s filing. See Mendez v. Holder, 566 F.3d 316, 18 323 (2d Cir. 2009). In addition, Weng’s assertion that the 19 agency did not apply the clear and convincing evidence 20 standard is contradicted by the record and merely employs 21 the rhetoric of a question of law to challenge the 22

3correctness of the agency’s factual findings. See Xiao Ji 1 Chen, 471 F.3d at 329. Weng’s contention that the agency 2 committed an error of law by discrediting her bankbook and 3 medical records for a lack of authentication is also 4 misplaced because the agency identified additional bases for 5 according diminished weight to this evidence, which was not 6 authenticated by any means.See Cao He Lin v. U.S. Dep’t of 7 Justice , 428 F.3d 391, 403 (2d Cir. 2005). As a result, we 8 lack jurisdiction to consider the agency’s pretermission of 9 asylum. 10 II. Credibility-Based Denial of Forced Abortion Claim 11 For applications such as Weng’s, which are governed by 12 the REAL ID Act, the agency may base a credibility finding 13 on an applicant’s demeanor, the plausibility of her account, 14 and inconsistencies in her statements, without regard to 15 whether they go “to the heart of the applicant’s claim.” 8 16 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an IJ’s 17 credibility determination unless, from the totality of the 18 circumstances, it is plain that no reasonable fact-finder 19 could make such an adverse credibility ruling.” Xiu Xia 20 Lin, 534 F.3d at 167. 21

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4Contrary to Weng’s assertions, the agency reasonably 1 based its adverse credibility determination on the 2 inconsistency between her testimony and application 3 regarding the number of people who took her for her forced 4 abortion. Xiu Xia Lin, 534 F.3d at 167. Although Weng 5 stated that she did not know why her application indicated 6 that five total people were present, rather than the four 7 people she testified to being present, the agency was not 8 required to credit her explanation, which is not necessarily 9 compelling to a reasonable fact-finder. See Majidi v. 10 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 11 Having called Weng’s credibility into question, the 12 agency reasonably determined that her failure to provide 13 sufficient corroborative evidence further undermined her 14 credibility. See Biao Yang v. Gonzales , 496 F.3d 268, 273 15 (2d Cir. 2007) (per curiam); see also See Xiao Ji Chen, 471 16 F.3d at 342 (holding that the weight accorded to evidence 17 lies largely within the agency’s discretion). Contrary to 18 Weng’s assertions, the agency did not err in according 19 diminished weight to her family’s statements because they 20 were from interested witnesses not subject to 21 cross-examination.See Matter of H-L-H- & Z-Y-Z- , 25 I. & 22 N. Dec. 209, 214-215 (B.I.A. 2010), abrogated in part on 23 5other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d 1 Cir. 2012). In addition, while Weng argues that the agency 2 improperly declined to credit her medical records due to a 3 perceived inconsistency with her testimony regarding her 4 employment status, where, as here, the agency’s inference 5 “is tethered to the evidentiary record, we will accord 6 deference to the finding.” Siewe v. Gonzalez , 480 F.3d 160, 7 168-69 (2d Cir. 2007) (finding that “support for a contrary 8 inference – even one more plausible or more natural – does 9 not suggest error”). Regardless, the medical records did 10 not indicate that she had, in fact, had an abortion. 11 Because the agency reasonably determined that Weng 12 failed to credibly establish her eligibility for asylum on 13 the basis of her forced abortion claim, it did not err in 14 finding that she also failed to establish her eligibility 15 for withholding of removal and CAT relief on this basis. 16 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue 17 Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d 18 Cir. 2005). 19 III. Burden-Based Denial of Underground Church Claim 20 Contrary to Weng’s assertion, the IJ did not misstate 21 the regulations or fail to assess whether there was a 22 reasonable possibility that she would be singled out 23 6individually for persecution on account of her religious 1 activities. While Weng also asserts that the IJ failed to 2 address her contention that she would be singled out for 3 persecution as an underground church member due to her past 4 violation of the family policy, Weng failed to credibly 5 establish her past family planning policy violation. Weng’s 6 argument that the BIA misapplied the standard of review 7 under Hui Lin Huang v. Holder, is also misplaced because the 8 BIA applied clear error review to the IJ’s factual 9 determination that Weng would not be persecuted in China and 10 applied de novo review to the IJ’s ultimate determination 11 that Weng had not meet her burden of demonstrating a 12 well-founded fear of persecution. See 677 F.3d 130, 133-34 13 (2d Cir. 2012). Moreover, Weng does not challenge the 14 agency’s determination that the country conditions evidence 15 did not reflect incidents of religious repression in her 16 home province of Fujian. 17 Because the agency did not err in finding that Weng 18 failed to demonstrate a well-founded fear of persecution on 19 account of her religious activities, it also did not err in 20 finding that she failed to meet the higher burden required 21 for withholding of removal or CAT relief. See Lecaj v. 22 Holder, 616 F.3d 111, 119-20 (2d Cir. 2010). 23 71 IV. Motion to Remand 2 The BIA’s denial of a motion to remand that relies on 3 new evidence is held to the substantive standard for motions 4 to reopen, and is reviewed for abuse of discretion. Li Yong 5 Cao v. U.S. Dep’t of Justice , 421 F.3d 149, 156 (2d Cir. 6 2005). “A motion to reopen proceedings shall not be granted 7 unless it appears to the Board that evidence sought to be 8 offered is material and was not available and could not have 9 been discovered or presented at the former hearing.” 8 10 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292, 294 11 & n.3 (2d Cir. 2006). 12 Contrary to Weng’s assertions, the BIA did not abuse 13 its discretion in denying her motion to remand. See Kaur v. 14

BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (per curiam). The 15 BIA reasonably determined that Weng’s evidence related to 16 her forced abortion claim was not material because it did 17 not rebut the prior adverse credibility determination.See 18

Kaur, 413 F.3d at 234 (affirming the BIA’s denial of an 19 untimely motion to reopen on the basis that the petitioner’s 20 evidence “was not ‘material’ because it did not rebut the 21 adverse credibility finding that provided the basis for the 22 IJ’s denial of petitioner’s underlying asylum application” 23 8(citation omitted)). Similarly, the BIA did not err in 1 finding that Weng’s photographs of her religious activities 2 at her new church were immaterial because they did not 3 establish that the Chinese government was or would likely 4 become aware of her religious activities. See 8 C.F.R. 5 § 1003.2(c)(1); Hongsheng Leng v. Mukasey, 528 F.3d 135, 6 142-43 (2d Cir. 2008). Weng also argued that the evidence 7 concerning the birth of her second child in the United 8 States placed her in violation of the one-child policy, but 9 to the extent that Weng’s proffered evidence includes proof 10 of the birth of her second child, it is nevertheless 11 immaterial because the record contains no evidence 12 demonstrating that Weng would likely be persecuted in China 13 for violating the one-child policy. See Matter of H-L-H- & 14

Z-Y-Z- , 25 I. & N. Dec. 209, 213-14 (BIA 2010), abrograted 15 in part on other grounds by Hui Lin Huang v. Holder, 677 16 F.3d 130 (2d Cir. 2012); see also Matter of S-Y-G- , 24 I. & 17 N. Dec. 247, 255 (BIA 2007). 18 For the foregoing reasons, the petition for review is 19 DISMISSED, as it relates to the agency’s pretermission 20 asylum, and DENIED, in all other respects. As we have 21 completed our review, any stay of removal that the Court 22 previously granted in this petition is VACATED, and any 23 9pending motion for a stay of removal in this petition is 1 DISMISSED as moot. Any pending request for oral argument in 2 this petition is DENIED in accordance with Federal Rule of 3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 4 34.1(b). 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 9

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