12-993

Weng v. Holder

BIA

Balasquide, IJ

A089 915 661

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

for the Second Circuit, held at the Thurgood Marshall United

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

on the 21st day of October, two thousand thirteen.

PRESENT:

PETER W. HALL,

DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_______________________________________

JIA CHAO WENG,

Petitioner,

 v. 12-993

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Farah Loftus, Century City,

California.

FOR RESPONDENT: Tony West, Assistant Attorney

General; John S. Hogan, Senior

Litigation Counsel; David H.

Wetmore, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
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.

Jia Chao Weng, a native and citizen of the People’s

Republic of China, seeks review of a February 27, 2012,

decision of the BIA affirming the September 2, 2010,

decision of Immigration Judge (“IJ”) Javier E. Balasquide,

which denied his application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Jia Chao Weng, No. A089 915 661 (B.I.A. Feb.

27, 2012), aff’g No. A089 915 661 (Immig. Ct. N.Y. City

Sept. 2, 2010). 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 decision of the IJ as supplemented and modified by the

BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

522 (2d Cir. 2005). The applicable standards of review are

well-established. See 8 U.S.C. § 1252(b)(4)(B); see also

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

For applications such as Weng’s, governed by the

amendments made to the Immigration and Nationality Act by

the REAL ID Act of 2005, the agency may, considering the

totality of the circumstances, base a credibility finding on

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

plausibility of his account, and inconsistencies in his

statements, without regard to whether they go “to the heart

of the applicant’s claim.” See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

167 (2d Cir. 2008) (per curiam). We will “defer . . . to an

IJ’s credibility determination unless, from the totality of

the circumstances, it is plain that no reasonable factfinder could make” such a ruling. Xiu Xia Lin, 534 F.3d at

167. Here, the IJ reasonably based his adverse credibility

determination on inconsistencies between Weng’s testimony

and both the testimony of his friend and his documentary

evidence, including the following: (1) Weng’s testimony that

he arrived at church prior to his friend, though his friend

testified that Weng arrived second; (2) Weng’s testimony

that his church service started fifteen minutes later than

the time to which his friend testified; and (3) Weng’s

testimony that he visited the doctor on March 25, 2008, due

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to vomiting caused by a cold, though his medical records

reflect that he visited the doctor on March 27, 2008, for

vomiting resulting from contaminated food. See 8 U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

at 167 (providing that an IJ may support an adverse

credibility determination with “any inconsistency or

omission”). Moreover, the IJ reasonably rejected Weng’s

explanations for these inconsistencies, specifically that he

was nervous and forgot minor details, because they did not

explain how he gave detailed yet contradictory testimony. 

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

Given these inconsistencies which call into question

Weng’s documentary evidence and his practice of

Christianity, the totality of the circumstances supports the

agency’s adverse credibility determination. See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because

the only evidence of a threat to Weng’s life or freedom, or

that he was likely to be tortured, depended upon his

credibility, the adverse credibility determination in this

case necessarily precludes success on his claims for asylum,

withholding of removal, and CAT relief. See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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