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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **6 th**  **day of July, two thousand fifteen.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **DEBRA ANN LIVINGSTON,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **YUEWEN FENG,** 13 Petitioner **,** 14 15 **v. 13-4764** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL, 1**  19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Guang Jun Gao, Law Offices of Guang 23 Jun Gao, LLP, Flushing, New York. 24 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 **FOR RESPONDENT:** Joyce R. Branda, Acting Assistant 1 Attorney General; Stephen J. Flynn, 2 Assistant Director; Lynda A. Do, 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 D.C. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review is 11

DENIED. 12 Petitioner Yuewen Feng, a native and citizen of the 13 People’s Republic of China, seeks review of a December 4, 2013, 14 decision of the BIA, affirming the October 19, 2012, decision 15 of an Immigration Judge (“IJ”), denying his application for 16 asylum, withholding of removal, and relief under the Convention 17 Against Torture (“CAT”). In re Yuewen Feng , No. A095 941 034 18 (B.I.A. Dec. 4, 2013), aff’g No. A095 941 034 (Immig. Ct. N.Y. 19 City Oct. 19, 2012). We assume the parties’ familiarity with 20 the underlying facts and procedural history in this case. 21 Under the circumstances of this case, we have considered 22 both the IJ’s and the BIA’s opinions. Zaman v. Mukasey , 514 23 F.3d 233, 237 (2d Cir. 2008) (per curiam) (quoting Wangchuck 24

v. DHS , 448 F.3d 524, 528 (2d Cir. 2006)). The applicable 253 standards of review are well established. See 8 U.S.C. 1 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165-66 2 (2d Cir. 2008) (per curiam). For asylum applications like 3 Feng’s, governed by the REAL ID Act, the agency may, 4 “[c]onsidering the totality of the circumstances,” base a 5 credibility determination on inconsistencies in an applicant’s 6 statements and other record evidence “without regard to 7 whether” they go “to the heart of the applicant’s claim.” 8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163-64. 9 The agency’s adverse credibility determination is based on 10 substantial evidence. 11 The IJ reasonably relied on multiple discrepancies among 12 Feng’s testimony, his asylum application, and his adjustment 13 application, all of which called into question whether Feng was 14 actually in China at the time of the alleged persecution. 15 Feng’s asylum application listed him as living in China from 16 his birth in 1969 until 2009 when he fled to the United States. 17 But at his hearing, he acknowledged the falsity of that 18 statement and testified that he first entered the United States 19 in December 1998, lived in Puerto Rico for five years, returned 20 to China in 2004, and reentered the United States (without 214 inspection) in 2009. When asked to explain, Feng first stated 1 that a law firm filled out the application without his 2 knowledge. Then, after admitting that he provided his 3 background information to the firm, Feng stated he did not know 4 why his asylum application omitted his five years in Puerto 5 Rico. The IJ was entitled to rely on the discrepancy in making 6 an adverse credibility determination, see Xiu Xia Lin , 534 F.3d 7 at 163-64, and was not required to accept Feng’s explanation, 8 see Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). 9 Feng also testified that he applied for adjustment of 10 status in Puerto Rico in 1998; however, Feng admitted that he 11 denied ever filing for any immigration benefits during his 12 interview with an asylum officer. Feng also admitted that his 13 adjustment application itself contained false statements 14 regarding when he entered Puerto Rico. Feng acknowledged that 15 his application listed an earlier entry date in order to obtain 16 the two years of residency necessary to adjust status, but at 17 the same time insisted that he knew nothing about the adjustment 18 application because it was filled out by another person. The 19 IJ was not required to credit this attempt to shift the 20 responsibility for false information. See Majidi , 430 F.3d at 215 80-81. Because Feng admitted to lying on multiple occasions 1 to obtain immigration benefits and because his false statements 2 call into question his presence in China during the relevant 3 periods, the IJ reasonably relied on the false statements to 4 find Feng incredible. See Siewe v. Gonzales , 480 F.3d 160, 170 5 (2d Cir. 2007); see also Xiu Xia Lin , 534 F.3d at 167. 6 Accordingly, because all of Feng’s claims rely on his 7 credibility, the agency did not err in denying asylum, 8 withholding of removal, and CAT relief because those claims were 9

based on the same factual predicate. Paul v. Gonzales , 444 F.3d 10 148, 156-57 (2d Cir. 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously gra nted in this petition is 14 VACATED, and any pending motion for a stay of removal in this 15 petition is DISMISSED as moot. Any pending request for oral 16 argument in this petition is DENIED in accordance with Federal 17 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local 18 Rule 34.1(b). 19

FOR THE COURT: 20 Catherine O = Hagan Wolfe, Clerk 21