16-4256 Weng v. Whitaker BIA Loprest, IJ A205 907 154 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 28 th**  **day of December, two thousand eighteen.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **DENNY CHIN,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **LING FENG WENG,** 13 Petitioner **,** 14 15 **v. 16-4256** 16 **NAC** 17 **MATTHEW G. WHITAKER,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Michael Brown, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Carl Mcintyre, 26 Assistant Director; Margaret A. 27 O’Donnell, Trial Attorney, Office 28 of Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Ling Feng Weng, a native and citizen of the 5 People’s Republic of China, seeks review of a December 2, 6 2016, decision of the BIA affirming a January 27, 2016, 7 decision of an Immigration Judge (“IJ”) denying Weng’s 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Ling 10 Feng Weng, No. A 205 907 154 (B.I.A. Dec. 2, 2016), aff’g No. 11

A 205 907 154 (Immig. Ct. N.Y. City Jan. 27, 2016). We assume 12 the parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we review both the 15 BIA’s and IJ’s decisions, but we do not reach the IJ’s 16 alternative burden finding because the BIA did not rely on 17 it. See Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 18 2005); Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 19 522 (2d Cir. 2005). The applicable standards of review are 20 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin 21 v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). In making 223 a credibility determination, the agency must “[c]onsider[] 1 the totality of the circumstances” and may base its 2 determination on the applicant’s “demeanor, candor, or 3 responsiveness, . . . the inherent plausibility of the 4 applicant’s . . . account,” inconsistencies or omissions in 5 the applicant’s statements or between his statements and 6 other evidence “without regard to whether an inconsistency, 7 inaccuracy, or falsehood goes to the heart of the applicant’s 8 claim, or any other relevant factor.” 8 U.S.C. 9 § 1158(b)(1)(B)(iii); accord Xiu Xia Lin , 534 F.3d at 163-64, 10 166-67. “We defer . . . to an IJ’s credibility determination 11 unless, from the totality of the circumstances, it is plain 12 that no reasonable fact-finder could make such an adverse 13 credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. We 14 conclude that there is substantial evidence for the adverse 15 credibility determination. 16 Omissions & Inconsistencies 17 The agency reasonably relied on omissions and 18 inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong 19 Fei Gao v. Sessions , 891 F.3d 67, 77 (2d Cir. 2018) 20 (holding that IJs may rely on omissions and 21 inconsistencies, including non-material ones, but noting 224 that omissions and inconsistencies “that ha[ve] no tendency 1 to suggest a petitioner fabricated his or her claim will 2 not support an adverse credibility determination”); Xiu Xia 3 Lin , 534 F.3d at 166-67 & n.3 (explaining that certain 4 omissions are “functionally equivalent” to 5 inconsistencies). Weng alleged in his asylum application 6 that family planning officials raided his home, destroyed 7 his property, arrested his father, and threatened him and 8 his wife with sterilization because his wife failed to 9 attend a scheduled pregnancy checkup, and that his mother 10 had to pay a fine to obtain his father’s release; but he 11 failed to mention these facts at his hearing. See Xiu Xia 12 Lin , 534 F.3d at 166n.3. The agency reasonably concluded 13 that the omission tended to show that Weng could not 14 remember what was written in his statement. See Siewe v. 15 Gonzales , 480 F.3d 160, 168-69 (2d Cir. 2007) (“The 16 speculation that inheres in inference is not ‘bald’ if the 17 inference is made available to the factfinder by record 18 facts, or even a single fact, viewed in the light of common 19 sense and ordinary experience. So long as an inferential 20 leap is tethered to the evidentiary record, we will accord 21 deference to the finding.”). Weng’s argument that he did 225 not testify about his father’s arrest because he was not 1 asked about it is unavailing because it was his burden to 2 prove eligibility for relief and he was asked what evidence 3 he had that the government wanted to sterilize him. See 4 8 U.S.C. § 1158(b)(1)(B)(i) (burden is on alien to 5 establish asylum eligibility), (iii) (“[t]here is no 6 presumption of credibility”); 8 C.F.R. § 1208.13(a). 7 The agency also reasonably relied on internal 8 inconsistencies in Weng’s testimony and inconsistencies 9 between the testimony and the documentary evidence. 10 8 U.S.C. § 1158(b)(1)(B)(iii). Weng stated that his wife 11 was forced to have an abortion in 2011, but his wife’s 12 letter stated the abortion occurred in 2012. Further 13 undermining the allegation of a forced abortion was Weng’s 14 mistaken, and then corrected, testimony that the abortion 15 certificate he submitted reflected his wife’s 16 sterilization. Nor did the agency err in relying on more 17 tangential inconsistencies. See Xiu Xia Lin , 534 F.3d at 18 167 (holding that “IJ may rely on any inconsistency or 19 omission in making an adverse credibility determination as 20 long as the ‘totality of the circumstances’” supports the 21 credibility ruling)(emphasis in original)); see also Hong 226 Fei Gao , 891 F.3d at 77-79 (reviewing standards for 1 evaluating omissions and inconsistencies). Weng testified 2 that he first violated China’s family planning policies 3 because his son was born before he was married, but the 4 marriage and birth certificates place the birth after the 5 marriage. And Weng’s testimony about the time he spent in 6 hiding was inconsistent because he testified to two years 7 at one point and one month at another. The IJ was not 8 required to credit Weng’s explanation that he misheard the 9 question or that two years was the “total time [he] was 10 hiding out,” particularly because Weng did not clarify the 11 dates that he was in hiding. See Majidi v. Gonzales , 430 12 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than 13 offer a plausible explanation for his inconsistent 14 statements to secure relief; he must demonstrate that a 15 reasonable fact-finder would be compelled to credit his 16 testimony.” (internal quotation marks omitted)(emphasis in 17 original)). 18 Implausibility 19 The IJ reasonably found implausible Weng’s testimony that 20 despite being wanted, he was able to leave China using his 21 own passport. See Ying Li v. Bureau of Citizenship & 227 Immigration Servs ., 529 F.3d 79, 83 (2d Cir. 2008) (upholding 1 an IJ’s implausibility finding where petitioner alleged that 2 she was able to leave China on her passport while wanted by 3 local authorities). The agency was not required to credit 4 Weng’s explanation that he was wanted by the “local 5 government” and not the national government, given his 6 statements that he was wanted everywhere and that he could 7 not relocate in China. See id . (questioning why petitioner, 8 who was wanted “only by local authorities” in China, did not 9 relocate elsewhere “in that capacious land”); see also 10 Majidi , 430 F.3d at 80. Similarly, the IJ reasonably found 11 implausible Weng’s testimony that while he and his wife were 12 in hiding, he was able to work in a factory and his wife was 13 able to give birth by Caesarean section without the 14 authorities finding out. See Siewe , 480 F.3d at 168-69. 15 Corroboration 16 Weng’s failure to offer reliable corroboration of 17 events in China bolsters the agency’s adverse credibility 18 determination. See Biao Yang v. Gonzales , 496 F.3d 268, 19 273 (2d Cir. 2007) (“An applicant’s failure to corroborate 20 his or her testimony may bear on credibility, because the 21 absence of corroboration in general makes an applicant 228 unable to rehabilitate testimony that has already been 1 called into question.”). The weighing of evidence is 2 largely within the agency’s discretion. Xiao Ji Chen v. 3 U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 2006). 4 Weng’s government documents lacked foundation and were 5 unauthenticated, so they were reasonably accorded minimal 6 weight. See id . And the letters from his family were from 7 interested parties who were not subject to cross8 examination. See Y.C. v. Holder , 741 F.3d 324, 334 (2d 9 Cir. 2013) (deferring to agency’s decision to give little 10 weight to letter from applicant’s spouse in China); In re 11

H-L-H- & Z-Y-Z- , 25 I. & N. Dec. 209, 215 (BIA 2010) 12 (giving diminished weight to letters from relatives because 13 they were from interested witnesses not subject to cross14 examination), rev’d on other grounds by Hui Lin Huang v. 15 Holder , 677 F.3d 130 (2d Cir. 2012). Weng’s contention 16 that authenticating his official documents would have 17 placed his family in danger is contradicted by his 18 assertion that his mother obtained the abortion certificate 19 from the village committee. See Xiao Xing Ni v. Gonzales , 20 494 F.3d 260, 263 (2d Cir. 2007); Tu Lin v. Gonzales , 446 21 F.3d 395, 400 (2d Cir. 2006). 229 Demeanor 1 Finally, the adverse credibility determination is 2 strengthened by the IJ’s demeanor finding. “[W]e give 3 particular deference to [credibility determinations] that 4 are based on the adjudicator’s observation of the 5 applicant’s demeanor,” particularly “where, as here, [the 6 observations] are supported by specific examples of 7 inconsistent testimony.” Li Hua Lin v. U.S. Dep’t of 8 Justice , 453 F.3d 99, 109 (2d Cir. 2006). The record 9 supports the IJ’s observations that Weng was not “an 10 entirely cooperative witness, even with his own counsel,” 11 that he answered questions with questions, asked for 12 questions to be repeated or was unresponsive, and that his 13 testimony became vague on cross-examination. 14 Given the multiple inconsistencies, the implausible 15 testimony, the lack of reliable corroboration, and the 16 demeanor finding, the “totality of the circumstances,” 17 supports the adverse credibility determination. Xiu Xia 18 Lin , 534 F.3d at 167. That determination is dispositive of 19 asylum, withholding of removal, and CAT relief because all 20 claims are based on the same factual predicate. See Paul 21 v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 2210 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of removal 2 that the Court previously granted in this petition is VACATED, 3 and any pending motion for a stay of removal in this petition 4 is DISMISSED as moot. 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court 8