12-63

Weng v. Holder

BIA

Nelson, IJ

A089 906 476

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 11th 4 day of September, two thousand twelve.

5

6 PRESENT:

7 BARRINGTON D. PARKER,

8 RICHARD C. WESLEY,

9 DENNY CHIN,

10 Circuit Judges. 

11 _______________________________________

12

13 ZHEN NI WENG,

14 Petitioner, 

15

16 v. 12-63

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Lee Ratner, Law Offices of Michael

24 Brown, New York, NY

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Keith I. McManus,

28 Senior Litigation Counsel; Catherine

29 B. Bye, Trial Attorney, Office of
1 Immigration Litigation, Civil

2 Division, United States Department

3 of Justice, Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Petitioner Zhen Ni Weng seeks review of a December 15,

10 2011, order of the BIA affirming the June 24, 2010, decision

11 of Immigration Judge (“IJ”) Barbara A. Nelson denying his

12 application for asylum, withholding of removal, and relief

13 under the Convention Against Torture (“CAT”). In re Zhen Ni

14 Weng, No. A089 906 476 (B.I.A. Dec. 15, 2011), aff’g No.

15 A089 906 476 (Immig. Ct. N.Y. City June 24, 2010). We

16 assume the parties’ familiarity with the underlying facts

17 and procedural history in this case.

18 Under the circumstances of this case, we have reviewed

19 the decision of the IJ as supplemented by the BIA. See Yan

20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

21 applicable standards of review are well-established. See 8

22 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

23 513 (2d Cir. 2009).

24 

2
1 Weng challenges the agency’s adverse credibility

2 determination. For asylum applications, such as this one,

3 governed by the REAL ID Act, the agency may, considering the

4 totality of the circumstances, base a credibility finding on

5 an asylum applicant’s “demeanor, candor, or responsiveness,”

6 and inconsistencies in his statements, 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). 

9 Weng challenges the IJ’s credibility finding

10 principally on the grounds that the “alleged

11 inconsistencies” were “perceived on the part of the IJ

12 rather than actual.” (Pet’r Br. at 8). The record,

13 however, supports the agency’s conclusion that Weng

14 testified inconsistently. Weng provided conflicting

15 testimony regarding the dates of his prior arrests, with

16 some discrepancies spanning several months to several years. 

17 He also did not testify accurately about when his wife’s

18 abortion certificate was issued, and the fact that a

19 certificate was issued suggested that the abortion was

20 voluntary. The agency’s conclusion that the certificate did

21 not support Weng’s testimony was reasonable.

22

3
1 Weng also argues that any inconsistencies should not be

2 held against him because he “possesses no formal education

3 and is illiterate.” (Id. at 9). The agency, however, was

4 not required to accept this explanation. See Majidi v.

5 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

6 do more than offer a plausible explanation for his

7 inconsistent statements to secure relief; he must

8 demonstrate that a reasonable fact-finder would be compelled

9 to credit his testimony.” (emphasis in original; quotation

10 marks omitted)).

11 Together, Weng’s demeanor, inconsistent statements, and

12 inadequate corroborating evidence provide substantial

13 evidence to support the agency’s credibility determination. 

14 See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

15 2007). Accordingly, the agency did not err in denying his

16 applications for relief. See Paul v. Gonzales, 444 F.3d

17 148, 156 (2d Cir. 2006).

18 For the foregoing reasons, the petition for review is

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

20 removal that the Court previously granted in this petition

21 is VACATED, and any pending motion for a stay of removal in

22 this petition is DENIED as moot. Any pending request for

4
1 oral argument in this petition is DENIED in accordance with

2 Federal Rule of Appellate Procedure 34(a)(2), and Second

3 Circuit Local Rule 34.1(b).

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

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