12-690 Weng v. Holder BIA Vomacka, IJ A098 456 250 

### 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 PERMI** **TTED 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**  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 7 th** **day of January, two thousand fourteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges **.** 10

**_____________________________________** 11 12 **NUANYU WENG,** 13 Petitioner**,** 14 15 **v. 12-690** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Nuanyu Weng,** pro se**, Monterey Park,** 23 **CA.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 26 **General; Derek C. Julius, Senior** 27 **Litigation Counsel; Theo Nickerson,** 28 **Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 32UPON 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 DISMISSED in part and DENIED in part. 4 Nuanyu Weng, a native and citizen of China, seeks 5 review of a February 9, 2012, decision of the BIA affirming 6 the May 21, 2010, decision of an Immigration Judge (“IJ”), 7 which denied her application for asylum, withholding of 8 removal, and relief under the Convention Against Torture 9 (“CAT”). In re Nuanyu Weng, No. A098 456 250 (B.I.A. Feb. 10 9, 2012),aff’gNo. A098 456 250 (Immig. Ct. N.Y. City May 11 21, 2010). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 Under the circumstances of this case, we review the 14 IJ’s decision as supplemented by the BIA. See Yan Chen v. 15 Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The applicable 16 standards of review are well-established. See8 U.S.C. 17 § 1252(b)(4)(B);see also Yanqin Weng v. Holder , 562 F.3d 18 510, 513 (2d Cir. 2009). 19 **I. Asylum** 20 We dismiss the petition to the extent Weng challenges 21 the pretermission of her asylum application as untimely. We 22

2generally lack jurisdiction to review the agency’s finding 1 that an asylum application was untimely under 8 U.S.C. 2 § 1158(a)(2)(B),(a)(3). Although we retain jurisdiction to 3 review “constitutional claims or questions of law,” 8 U.S.C. 4 § 1252(a)(2)(D), Weng challenges only the IJ’s factual 5 findings as to the credibility of her testimony regarding 6 her arrival in the United States. 7 **II. Withholding of Removal and CAT Relief** 8 To the extent Weng challenges the agency’s denial of 9 withholding of removal and CAT relief on credibility 10 grounds, we deny the petition. For applications such as 11 Weng’s, filed before the REAL ID Act of 2005, an agency’s 12 adverse credibility determination must be based on 13 “specific, cogent reasons” that “bear a legitimate nexus” to 14 the finding, and any discrepancy must be “substantial” when 15 measured against the record as a whole. See Secaida-Rosales 16
v. INS , 331 F.3d 297, 307 (2d Cir. 2003). Substantial 17 evidence supports the agency’s adverse credibility 18 determination given Weng’s submission of fraudulent 19 documents, inconsistencies in her statements, and the IJ’s 20 demeanor finding. 21
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3The agency reasonably based its adverse credibility 1 determination on Weng’s submission of fraudulent evidence. 2 See Siewe v. Gonzales , 480 F

. 3d 160, 170 (2d Cir. 2007) 3 (“[A] finding of fraudulent evidence redounds upon all 4 evidence the probative force of which relies in any part on 5 the credibility of the petitioner.”). Even though the 6 fraudulent evidence finding was sufficient, the agency’s 7 adverse credibility finding is further supported by the IJ’s 8 determination, to which we defer, that Weng’s demeanor was 9 hesitant. See Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 10 104, 116-117 (2d Cir. 2007). 11 Moreover, the agency reasonably considered 12 inconsistencies in Weng’s testimony and documentary evidence 13 regarding the timing of her departure from China and arrival 14 in the United States, the reason her cousin was not present 15 at her religious anniversary ceremony, and the date of that 16
ceremony. See Shu Wen Sun v. Bd. of Immigration Appeals , 17 510 F.3d 377, 380 (2d Cir. 2007); Tu Lin v. Gonzales , 446 18 F.3d 395, 401-03 (2d Cir. 2006). Given the foregoing 19 problems with Weng’s testimony and evidence, substantial 20 evidence supports the adverse credibility determination. 21 See Secaida-Rosales , 331 F.3d at 307. Because the only 22

4evidence of a threat to Weng’s life or freedom depended upon 1 her credibility, the adverse credibility determination in 2 this case necessarily precludes success on her claims for 3 withholding of removal and CAT relief. See Paul v. 4 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006);Xue Hong Yang v. 5 U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 6 Nor has Weng established that her due process rights 7 were violated by a deficiency in interpretation services. 8 Weng was provided “a full and fair opportunity to present 9 her claims” and identified only one alleged translation 10 error which is unsupported given her subsequent concession 11 that she misspoke. Burger v. Gonzales , 498 F.3d 131, 134 12 (2d Cir. 2007); see also Garcia-Villeda v. Mukasey, 531 F.3d 13 141, 149 (2d Cir. 2008) (“Parties claiming a denial of due 14 process in immigration cases must, in order to prevail, 15 allege some cognizable prejudice fairly attributable to the 16 challenged process.”). 17 For the foregoing reasons, the petition for review is 18 DISMISSED in part and DENIED in part. As we have completed 19 our review, any stay of removal that the Court previously 20 granted in this petition is VACATED, and any pending motion 21 for a stay of removal in this petition is DENIED as moot. 22 Any pending request for oral argument in this petition is 23 5DENIED in accordance with Federal Rule of Appellate 1 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 2
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FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6

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