13-4764 

Feng v. Lynch

BIA 

Laforest, IJ 

A095 941 034

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.

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

2 the Second Circuit, held at the Thurgood Marshall United States 

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

6th 4 day of July, two thousand fifteen. 

5 

6 PRESENT: 

7 REENA RAGGI,

8 DEBRA ANN LIVINGSTON, 

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 YUEWEN FENG, 

14 Petitioner, 

15 

16 v. 13-4764 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL,1 19 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Guang Jun Gao, Law Offices of Guang 

24 Jun Gao, LLP, Flushing, New York.

25 

 

1

 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney 

General Loretta E. Lynch is automatically substituted for former 

Attorney General Eric H. Holder, Jr. 
2 

1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 

2 Attorney General; Stephen J. Flynn, 

3 Assistant Director; Lynda A. Do, 

4 Attorney, Office of Immigration 

5 Litigation, United States 

6 Department of Justice, Washington, 

7 D.C. 

8 

9 UPON DUE CONSIDERATION of this petition for review of a 

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

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

12 DENIED. 

13 Petitioner Yuewen Feng, a native and citizen of the 

14 People’s Republic of China, seeks review of a December 4, 2013, 

15 decision of the BIA, affirming the October 19, 2012, decision 

16 of an Immigration Judge (“IJ”), denying his application for 

17 asylum, withholding of removal, and relief under the Convention 

18 Against Torture (“CAT”). In re Yuewen Feng, No. A095 941 034 

19 (B.I.A. Dec. 4, 2013), aff’g No. A095 941 034 (Immig. Ct. N.Y. 

20 City Oct. 19, 2012). We assume the parties’ familiarity with 

21 the underlying facts and procedural history in this case. 

22 Under the circumstances of this case, we have considered 

23 both the IJ’s and the BIA’s opinions. Zaman v. Mukasey, 514 

24 F.3d 233, 237 (2d Cir. 2008) (per curiam) (quoting Wangchuck 

25 v. DHS, 448 F.3d 524, 528 (2d Cir. 2006)). The applicable 
3 

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

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

3 (2d Cir. 2008) (per curiam). For asylum applications like 

4 Feng’s, governed by the REAL ID Act, the agency may, 

5 “[c]onsidering the totality of the circumstances,” base a 

6 credibility determination on inconsistencies in an applicant’s 

7 statements and other record evidence “without regard to 

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

9 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. 

10 The agency’s adverse credibility determination is based on 

11 substantial evidence. 

12 The IJ reasonably relied on multiple discrepancies among 

13 Feng’s testimony, his asylum application, and his adjustment 

14 application, all of which called into question whether Feng was 

15 actually in China at the time of the alleged persecution. 

16 Feng’s asylum application listed him as living in China from 

17 his birth in 1969 until 2009 when he fled to the United States. 

18 But at his hearing, he acknowledged the falsity of that 

19 statement and testified that he first entered the United States 

20 in December 1998, lived in Puerto Rico for five years, returned 

21 to China in 2004, and reentered the United States (without 
4 

1 inspection) in 2009. When asked to explain, Feng first stated 

2 that a law firm filled out the application without his 

3 knowledge. Then, after admitting that he provided his 

4 background information to the firm, Feng stated he did not know 

5 why his asylum application omitted his five years in Puerto 

6 Rico. The IJ was entitled to rely on the discrepancy in making 

7 an adverse credibility determination, see Xiu Xia Lin, 534 F.3d 

8 at 163-64, and was not required to accept Feng’s explanation, 

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

10 Feng also testified that he applied for adjustment of 

11 status in Puerto Rico in 1998; however, Feng admitted that he 

12 denied ever filing for any immigration benefits during his 

13 interview with an asylum officer. Feng also admitted that his 

14 adjustment application itself contained false statements 

15 regarding when he entered Puerto Rico. Feng acknowledged that 

16 his application listed an earlier entry date in order to obtain 

17 the two years of residency necessary to adjust status, but at 

18 the same time insisted that he knew nothing about the adjustment 

19 application because it was filled out by another person. The 

20 IJ was not required to credit this attempt to shift the 

21 responsibility for false information. See Majidi, 430 F.3d at 
5 

1 80-81. Because Feng admitted to lying on multiple occasions 

2 to obtain immigration benefits and because his false statements 

3 call into question his presence in China during the relevant 

4 periods, the IJ reasonably relied on the false statements to 

5 find Feng incredible. See Siewe v. Gonzales, 480 F.3d 160, 170 

6 (2d Cir. 2007); see also Xiu Xia Lin, 534 F.3d at 167. 

7 Accordingly, because all of Feng’s claims rely on his 

8 credibility, the agency did not err in denying asylum, 

9 withholding of removal, and CAT relief because those claims were 

10 based on the same factual predicate. Paul v. Gonzales, 444 F.3d 

11 148, 156-57 (2d Cir. 2006). 

12 For the foregoing reasons, the petition for review is 

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

14 removal that the Court previously granted in this petition is 

15 VACATED, and any pending motion for a stay of removal in this 

16 petition is DISMISSED as moot. Any pending request for oral 

17 argument in this petition is DENIED in accordance with Federal 

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

19 Rule 34.1(b). 

20 FOR THE COURT: 

21 Catherine O=Hagan Wolfe, Clerk