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.

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,

on the 28th 4 day of October, two thousand fourteen.

5

6 PRESENT:

7 RICHARD C. WESLEY,

8 PETER W. HALL,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges.

11 _____________________________________

12

13 XIAO-YING WENG,

14 Petitioner, 

15

16 v. 12-3005

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Gary J. Yerman, Yerman & Associates,

24 LLC, New York, NY.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Leslie McKay,

28 Assistant Director; Sara J. Bergene,

29 Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DISMISSED in part and in part DENIED.

5 Petitioner Xiao-Ying Weng, a native and citizen of

6 China, seeks review of a July 11, 2012, order of the BIA,

7 denying her motion to remand and affirming the December 10,

8 2010, decision of an Immigration Judge (“IJ”), which

9 pretermitted her application for asylum and denied

10 withholding of removal and relief under the Convention

11 Against Torture (“CAT”). In re Xiao-Ying Weng, No. A093 354

12 119 (B.I.A. July 11, 2012), aff’g No. A093 354 119 (Immig.

13 Ct. New York City Dec. 10, 2010). We assume the parties’

14 familiarity with the underlying facts and procedural history

15 in this case. 

16 Under the circumstances of this case, we review the

17 decisions of both the IJ and the BIA. See Yun-Zui Guan v.

18 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). 

19 The applicable standards of review are well-established. 

20 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

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

22

23

24

2
1 I. Pretermission of Asylum

2 Title 8, Section 1158(a)(3) of the United States Code

3 provides that no court shall have jurisdiction to review the

4 agency’s finding that an asylum application was untimely

5 under 8 U.S.C. § 1158(a)(2)(B). However, we retain

6 jurisdiction to review constitutional claims and “questions

7 of law.” 8 U.S.C. § 1252(a)(2)(D). 

8 Weng’s challenges to the agency’s pretermission of

9 asylum do not raise reviewable constitutional claims or

10 questions of law. See Xiao Ji Chen v. U.S. Dep’t of

11 Justice, 471 F.3d 315, 329 (2d Cir. 2006). Although Weng

12 correctly notes that the agency confused her alleged date of

13 departure from China with her alleged date of arrival in the

14 United States, this error was harmless and does not

15 constitute fact-finding that is flawed by an error of law

16 because the agency reasonably determined that Weng had not

17 established her arrival on any date within one year of her

18 application’s filing. See Mendez v. Holder, 566 F.3d 316,

19 323 (2d Cir. 2009). In addition, Weng’s assertion that the

20 agency did not apply the clear and convincing evidence

21 standard is contradicted by the record and merely employs

22 the rhetoric of a question of law to challenge the

3
1 correctness of the agency’s factual findings. See Xiao Ji

2 Chen, 471 F.3d at 329. Weng’s contention that the agency

3 committed an error of law by discrediting her bankbook and

4 medical records for a lack of authentication is also

5 misplaced because the agency identified additional bases for

6 according diminished weight to this evidence, which was not

7 authenticated by any means. See Cao He Lin v. U.S. Dep’t of

8 Justice, 428 F.3d 391, 403 (2d Cir. 2005). As a result, we

9 lack jurisdiction to consider the agency’s pretermission of

10 asylum. 

11 II. Credibility-Based Denial of Forced Abortion Claim

12 For applications such as Weng’s, which are governed by

13 the REAL ID Act, the agency may base a credibility finding

14 on an applicant’s demeanor, the plausibility of her account,

15 and inconsistencies in her statements, without regard to

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

17 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an IJ’s

18 credibility determination unless, from the totality of the

19 circumstances, it is plain that no reasonable fact-finder

20 could make such an adverse credibility ruling.” Xiu Xia

21 Lin, 534 F.3d at 167. 

22

4
1 Contrary to Weng’s assertions, the agency reasonably

2 based its adverse credibility determination on the

3 inconsistency between her testimony and application

4 regarding the number of people who took her for her forced

5 abortion. Xiu Xia Lin, 534 F.3d at 167. Although Weng

6 stated that she did not know why her application indicated

7 that five total people were present, rather than the four

8 people she testified to being present, the agency was not

9 required to credit her explanation, which is not necessarily

10 compelling to a reasonable fact-finder. See Majidi v.

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

12 Having called Weng’s credibility into question, the

13 agency reasonably determined that her failure to provide

14 sufficient corroborative evidence further undermined her

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

16 (2d Cir. 2007) (per curiam); see also See Xiao Ji Chen, 471

17 F.3d at 342 (holding that the weight accorded to evidence

18 lies largely within the agency’s discretion). Contrary to

19 Weng’s assertions, the agency did not err in according

20 diminished weight to her family’s statements because they

21 were from interested witnesses not subject to

22 cross-examination. See Matter of H-L-H- & Z-Y-Z-, 25 I. &

23 N. Dec. 209, 214-215 (B.I.A. 2010), abrogated in part on

5
1 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

2 Cir. 2012). In addition, while Weng argues that the agency

3 improperly declined to credit her medical records due to a

4 perceived inconsistency with her testimony regarding her

5 employment status, where, as here, the agency’s inference

6 “is tethered to the evidentiary record, we will accord

7 deference to the finding.” Siewe v. Gonzalez, 480 F.3d 160,

8 168-69 (2d Cir. 2007) (finding that “support for a contrary

9 inference – even one more plausible or more natural – does

10 not suggest error”). Regardless, the medical records did

11 not indicate that she had, in fact, had an abortion.

12 Because the agency reasonably determined that Weng

13 failed to credibly establish her eligibility for asylum on

14 the basis of her forced abortion claim, it did not err in

15 finding that she also failed to establish her eligibility

16 for withholding of removal and CAT relief on this basis. 

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

18 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d

19 Cir. 2005).

20 III. Burden-Based Denial of Underground Church Claim

21 Contrary to Weng’s assertion, the IJ did not misstate

22 the regulations or fail to assess whether there was a

23 reasonable possibility that she would be singled out

6
1 individually for persecution on account of her religious

2 activities. While Weng also asserts that the IJ failed to

3 address her contention that she would be singled out for

4 persecution as an underground church member due to her past

5 violation of the family policy, Weng failed to credibly

6 establish her past family planning policy violation. Weng’s

7 argument that the BIA misapplied the standard of review

8 under Hui Lin Huang v. Holder, is also misplaced because the

9 BIA applied clear error review to the IJ’s factual

10 determination that Weng would not be persecuted in China and

11 applied de novo review to the IJ’s ultimate determination

12 that Weng had not meet her burden of demonstrating a

13 well-founded fear of persecution. See 677 F.3d 130, 133-34

14 (2d Cir. 2012). Moreover, Weng does not challenge the

15 agency’s determination that the country conditions evidence

16 did not reflect incidents of religious repression in her

17 home province of Fujian. 

18 Because the agency did not err in finding that Weng

19 failed to demonstrate a well-founded fear of persecution on

20 account of her religious activities, it also did not err in

21 finding that she failed to meet the higher burden required

22 for withholding of removal or CAT relief. See Lecaj v.

23 Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).

7
1

2 IV. Motion to Remand

3 The BIA’s denial of a motion to remand that relies on

4 new evidence is held to the substantive standard for motions

5 to reopen, and is reviewed for abuse of discretion. Li Yong

6 Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir.

7 2005). “A motion to reopen proceedings shall not be granted

8 unless it appears to the Board that evidence sought to be

9 offered is material and was not available and could not have

10 been discovered or presented at the former hearing.” 8

11 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292, 294

12 & n.3 (2d Cir. 2006). 

13 Contrary to Weng’s assertions, the BIA did not abuse

14 its discretion in denying her motion to remand. See Kaur v.

15 BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (per curiam). The

16 BIA reasonably determined that Weng’s evidence related to

17 her forced abortion claim was not material because it did

18 not rebut the prior adverse credibility determination. See

19 Kaur, 413 F.3d at 234 (affirming the BIA’s denial of an

20 untimely motion to reopen on the basis that the petitioner’s

21 evidence “was not ‘material’ because it did not rebut the

22 adverse credibility finding that provided the basis for the

23 IJ’s denial of petitioner’s underlying asylum application”

8
1 (citation omitted)). Similarly, the BIA did not err in

2 finding that Weng’s photographs of her religious activities

3 at her new church were immaterial because they did not

4 establish that the Chinese government was or would likely

5 become aware of her religious activities. See 8 C.F.R. 

6 § 1003.2(c)(1); Hongsheng Leng v. Mukasey, 528 F.3d 135,

7 142-43 (2d Cir. 2008). Weng also argued that the evidence

8 concerning the birth of her second child in the United

9 States placed her in violation of the one-child policy, but

10 to the extent that Weng’s proffered evidence includes proof

11 of the birth of her second child, it is nevertheless

12 immaterial because the record contains no evidence

13 demonstrating that Weng would likely be persecuted in China

14 for violating the one-child policy. See Matter of H-L-H- &

15 Z-Y-Z-, 25 I. & N. Dec. 209, 213-14 (BIA 2010), abrograted

16 in part on other grounds by Hui Lin Huang v. Holder, 677

17 F.3d 130 (2d Cir. 2012); see also Matter of S-Y-G-, 24 I. &

18 N. Dec. 247, 255 (BIA 2007).

19 For the foregoing reasons, the petition for review is

20 DISMISSED, as it relates to the agency’s pretermission

21 asylum, and DENIED, in all other respects. As we have

22 completed our review, any stay of removal that the Court

23 previously granted in this petition is VACATED, and any

9
1 pending motion for a stay of removal in this petition is

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

3 this petition is DENIED in accordance with Federal Rule of

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

5 34.1(b).

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk

8

9

10