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.

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

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

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

on the 28th 4 day of December, two thousand eighteen. 

5 

6 PRESENT: 

7 RALPH K. WINTER,

8 DENNY CHIN, 

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 LING FENG WENG, 

14 Petitioner, 

15 

16 v. 16-4256 

17 NAC 

18 MATTHEW G. WHITAKER, 

19 UNITED STATES ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Michael Brown, New York, NY. 

24 

25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

26 Attorney General; Carl Mcintyre, 

27 Assistant Director; Margaret A. 

28 O’Donnell, Trial Attorney, Office 

29 of Immigration Litigation, United 

30 States Department of Justice, 

31 Washington, DC. 
2

1 UPON DUE CONSIDERATION of this petition for review of a 

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

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

4 is DENIED. 

5 Petitioner Ling Feng Weng, a native and citizen of the 

6 People’s Republic of China, seeks review of a December 2, 

7 2016, decision of the BIA affirming a January 27, 2016, 

8 decision of an Immigration Judge (“IJ”) denying Weng’s 

9 application for asylum, withholding of removal, and relief 

10 under the Convention Against Torture (“CAT”). In re Ling 

11 Feng Weng, No. A 205 907 154 (B.I.A. Dec. 2, 2016), aff’g No. 

12 A205 907 154 (Immig. Ct. N.Y. City Jan. 27, 2016). We assume 

13 the parties’ familiarity with the underlying facts and 

14 procedural history in this case. 

15 Under the circumstances of this case, we review both the 

16 BIA’s and IJ’s decisions, but we do not reach the IJ’s 

17 alternative burden finding because the BIA did not rely on 

18 it. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 

19 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 

20 522 (2d Cir. 2005). The applicable standards of review are 

21 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin 

22 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). In making 
3

1 a credibility determination, the agency must “[c]onsider[] 

2 the totality of the circumstances” and may base its 

3 determination on the applicant’s “demeanor, candor, or 

4 responsiveness, . . . the inherent plausibility of the 

5 applicant’s . . . account,” inconsistencies or omissions in 

6 the applicant’s statements or between his statements and 

7 other evidence “without regard to whether an inconsistency, 

8 inaccuracy, or falsehood goes to the heart of the applicant’s 

9 claim, or any other relevant factor.” 8 U.S.C. 

10 § 1158(b)(1)(B)(iii);accord Xiu Xia Lin, 534 F.3d at 163-64, 

11 166-67. “We defer . . . to an IJ’s credibility determination 

12 unless, from the totality of the circumstances, it is plain 

13 that no reasonable fact-finder could make such an adverse 

14 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. We 

15 conclude that there is substantial evidence for the adverse 

16 credibility determination. 

17 Omissions & Inconsistencies 

18 The agency reasonably relied on omissions and 

19 inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong 

20 Fei Gao v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018) 

21 (holding that IJs may rely on omissions and 

22 inconsistencies, including non-material ones, but noting 
4

1 that omissions and inconsistencies “that ha[ve] no tendency 

2 to suggest a petitioner fabricated his or her claim will 

3 not support an adverse credibility determination”); Xiu Xia 

4 Lin, 534 F.3d at 166-67 & n.3 (explaining that certain 

5 omissions are “functionally equivalent” to 

6 inconsistencies). Weng alleged in his asylum application 

7 that family planning officials raided his home, destroyed 

8 his property, arrested his father, and threatened him and 

9 his wife with sterilization because his wife failed to 

10 attend a scheduled pregnancy checkup, and that his mother 

11 had to pay a fine to obtain his father’s release; but he 

12 failed to mention these facts at his hearing. See Xiu Xia 

13 Lin, 534 F.3d at 166n.3. The agency reasonably concluded 

14 that the omission tended to show that Weng could not 

15 remember what was written in his statement. See Siewe v. 

16 Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (“The 

17 speculation that inheres in inference is not ‘bald’ if the 

18 inference is made available to the factfinder by record 

19 facts, or even a single fact, viewed in the light of common 

20 sense and ordinary experience. So long as an inferential 

21 leap is tethered to the evidentiary record, we will accord 

22 deference to the finding.”). Weng’s argument that he did 
5

1 not testify about his father’s arrest because he was not 

2 asked about it is unavailing because it was his burden to 

3 prove eligibility for relief and he was asked what evidence 

4 he had that the government wanted to sterilize him. See

5 8 U.S.C. § 1158(b)(1)(B)(i) (burden is on alien to 

6 establish asylum eligibility), (iii) (“[t]here is no 

7 presumption of credibility”); 8 C.F.R. § 1208.13(a). 

8 The agency also reasonably relied on internal 

9 inconsistencies in Weng’s testimony and inconsistencies 

10 between the testimony and the documentary evidence. 

11 8 U.S.C. § 1158(b)(1)(B)(iii). Weng stated that his wife 

12 was forced to have an abortion in 2011, but his wife’s 

13 letter stated the abortion occurred in 2012. Further 

14 undermining the allegation of a forced abortion was Weng’s 

15 mistaken, and then corrected, testimony that the abortion 

16 certificate he submitted reflected his wife’s 

17 sterilization. Nor did the agency err in relying on more 

18 tangential inconsistencies. See Xiu Xia Lin, 534 F.3d at 

19 167 (holding that “IJ may rely on any inconsistency or 

20 omission in making an adverse credibility determination as 

21 long as the ‘totality of the circumstances’” supports the 

22 credibility ruling)(emphasis in original)); see also Hong 
6

1 Fei Gao, 891 F.3d at 77-79 (reviewing standards for 

2 evaluating omissions and inconsistencies). Weng testified 

3 that he first violated China’s family planning policies 

4 because his son was born before he was married, but the 

5 marriage and birth certificates place the birth after the 

6 marriage. And Weng’s testimony about the time he spent in 

7 hiding was inconsistent because he testified to two years 

8 at one point and one month at another. The IJ was not 

9 required to credit Weng’s explanation that he misheard the 

10 question or that two years was the “total time [he] was 

11 hiding out,” particularly because Weng did not clarify the 

12 dates that he was in hiding. See Majidi v. Gonzales, 430 

13 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than 

14 offer a plausible explanation for his inconsistent 

15 statements to secure relief; he must demonstrate that a 

16 reasonable fact-finder would be compelled to credit his 

17 testimony.” (internal quotation marks omitted)(emphasis in 

18 original)). 

19 Implausibility 

20 The IJ reasonably found implausible Weng’s testimony that 

21 despite being wanted, he was able to leave China using his 

22 own passport. See Ying Li v. Bureau of Citizenship & 
7

1 Immigration Servs., 529 F.3d 79, 83 (2d Cir. 2008) (upholding 

2 an IJ’s implausibility finding where petitioner alleged that 

3 she was able to leave China on her passport while wanted by 

4 local authorities). The agency was not required to credit 

5 Weng’s explanation that he was wanted by the “local 

6 government” and not the national government, given his 

7 statements that he was wanted everywhere and that he could 

8 not relocate in China. See id. (questioning why petitioner, 

9 who was wanted “only by local authorities” in China, did not 

10 relocate elsewhere “in that capacious land”); see also 

11 Majidi, 430 F.3d at 80. Similarly, the IJ reasonably found 

12 implausible Weng’s testimony that while he and his wife were 

13 in hiding, he was able to work in a factory and his wife was 

14 able to give birth by Caesarean section without the 

15 authorities finding out. See Siewe, 480 F.3d at 168-69. 

16 Corroboration 

17 Weng’s failure to offer reliable corroboration of 

18 events in China bolsters the agency’s adverse credibility 

19 determination. See Biao Yang v. Gonzales, 496 F.3d 268, 

20 273 (2d Cir. 2007) (“An applicant’s failure to corroborate 

21 his or her testimony may bear on credibility, because the 

22 absence of corroboration in general makes an applicant 
8

1 unable to rehabilitate testimony that has already been 

2 called into question.”). The weighing of evidence is 

3 largely within the agency’s discretion. Xiao Ji Chen v. 

4 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). 

5 Weng’s government documents lacked foundation and were 

6 unauthenticated, so they were reasonably accorded minimal 

7 weight. See id. And the letters from his family were from 

8 interested parties who were not subject to cross9 examination. See Y.C. v. Holder, 741 F.3d 324, 334 (2d 

10 Cir. 2013) (deferring to agency’s decision to give little 

11 weight to letter from applicant’s spouse in China); In re 

12 H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) 

13 (giving diminished weight to letters from relatives because 

14 they were from interested witnesses not subject to cross15 examination), rev’d on other grounds by Hui Lin Huang v. 

16 Holder, 677 F.3d 130 (2d Cir. 2012). Weng’s contention 

17 that authenticating his official documents would have 

18 placed his family in danger is contradicted by his 

19 assertion that his mother obtained the abortion certificate 

20 from the village committee. See Xiao Xing Ni v. Gonzales, 

21 494 F.3d 260, 263 (2d Cir. 2007); Tu Lin v. Gonzales, 446 

22 F.3d 395, 400 (2d Cir. 2006). 
9

1 Demeanor 

2 Finally, the adverse credibility determination is 

3 strengthened by the IJ’s demeanor finding. “[W]e give 

4 particular deference to [credibility determinations] that 

5 are based on the adjudicator’s observation of the 

6 applicant’s demeanor,” particularly “where, as here, [the 

7 observations] are supported by specific examples of 

8 inconsistent testimony.” Li Hua Lin v. U.S. Dep’t of 

9 Justice, 453 F.3d 99, 109 (2d Cir. 2006). The record 

10 supports the IJ’s observations that Weng was not “an 

11 entirely cooperative witness, even with his own counsel,” 

12 that he answered questions with questions, asked for 

13 questions to be repeated or was unresponsive, and that his 

14 testimony became vague on cross-examination. 

15 Given the multiple inconsistencies, the implausible 

16 testimony, the lack of reliable corroboration, and the 

17 demeanor finding, the “totality of the circumstances,” 

18 supports the adverse credibility determination. Xiu Xia 

19 Lin, 534 F.3d at 167. That determination is dispositive of 

20 asylum, withholding of removal, and CAT relief because all 

21 claims are based on the same factual predicate. See Paul 

22 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 
10

1 For the foregoing reasons, the petition for review is 

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

3 that the Court previously granted in this petition is VACATED, 

4 and any pending motion for a stay of removal in this petition 

5 is DISMISSED as moot. 

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, 

8 Clerk of Court