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 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 Thurgood Marshall United

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

on the 7th 4 day of January, two thousand fourteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 DENNY CHIN,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 NUANYU WENG,

14 Petitioner, 

15

16 v. 12-690

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Nuanyu Weng, pro se, Monterey Park,

24 CA. 

25

26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

27 General; Derek C. Julius, Senior

28 Litigation Counsel; Theo Nickerson,

29 Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
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 DISMISSED in part and DENIED in part.

5 Nuanyu Weng, a native and citizen of China, seeks

6 review of a February 9, 2012, decision of the BIA affirming

7 the May 21, 2010, decision of an Immigration Judge (“IJ”),

8 which denied her application for asylum, withholding of

9 removal, and relief under the Convention Against Torture

10 (“CAT”). In re Nuanyu Weng, No. A098 456 250 (B.I.A. Feb.

11 9, 2012), aff’g No. A098 456 250 (Immig. Ct. N.Y. City May

12 21, 2010). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 Under the circumstances of this case, we review the

15 IJ’s decision as supplemented by the BIA. See Yan Chen v.

16 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

17 standards of review are well-established. See 8 U.S.C.

18 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

19 510, 513 (2d Cir. 2009).

20 I. Asylum

21 We dismiss the petition to the extent Weng challenges

22 the pretermission of her asylum application as untimely. We

2
1 generally lack jurisdiction to review the agency’s finding

2 that an asylum application was untimely under 8 U.S.C.

3 § 1158(a)(2)(B),(a)(3). Although we retain jurisdiction to

4 review “constitutional claims or questions of law,” 8 U.S.C.

5 § 1252(a)(2)(D), Weng challenges only the IJ’s factual

6 findings as to the credibility of her testimony regarding

7 her arrival in the United States. 

8 II. Withholding of Removal and CAT Relief

9 To the extent Weng challenges the agency’s denial of

10 withholding of removal and CAT relief on credibility

11 grounds, we deny the petition. For applications such as

12 Weng’s, filed before the REAL ID Act of 2005, an agency’s

13 adverse credibility determination must be based on

14 “specific, cogent reasons” that “bear a legitimate nexus” to

15 the finding, and any discrepancy must be “substantial” when

16 measured against the record as a whole. See Secaida-Rosales

17 v. INS, 331 F.3d 297, 307 (2d Cir. 2003). Substantial

18 evidence supports the agency’s adverse credibility

19 determination given Weng’s submission of fraudulent

20 documents, inconsistencies in her statements, and the IJ’s

21 demeanor finding.

22

3
1 The agency reasonably based its adverse credibility

2 determination on Weng’s submission of fraudulent evidence. 

3 See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)

4 (“[A] finding of fraudulent evidence redounds upon all

5 evidence the probative force of which relies in any part on

6 the credibility of the petitioner.”). Even though the

7 fraudulent evidence finding was sufficient, the agency’s

8 adverse credibility finding is further supported by the IJ’s

9 determination, to which we defer, that Weng’s demeanor was

10 hesitant. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

11 104, 116-117 (2d Cir. 2007). 

12 Moreover, the agency reasonably considered

13 inconsistencies in Weng’s testimony and documentary evidence

14 regarding the timing of her departure from China and arrival

15 in the United States, the reason her cousin was not present

16 at her religious anniversary ceremony, and the date of that

17 ceremony. See Shu Wen Sun v. Bd. of Immigration Appeals,

18 510 F.3d 377, 380 (2d Cir. 2007); Tu Lin v. Gonzales, 446

19 F.3d 395, 401-03 (2d Cir. 2006). Given the foregoing

20 problems with Weng’s testimony and evidence, substantial

21 evidence supports the adverse credibility determination. 

22 See Secaida-Rosales, 331 F.3d at 307. Because the only

4
1 evidence of a threat to Weng’s life or freedom depended upon

2 her credibility, the adverse credibility determination in

3 this case necessarily precludes success on her claims for

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

5 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

6 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

7 Nor has Weng established that her due process rights

8 were violated by a deficiency in interpretation services. 

9 Weng was provided “a full and fair opportunity to present

10 her claims” and identified only one alleged translation

11 error which is unsupported given her subsequent concession

12 that she misspoke. Burger v. Gonzales, 498 F.3d 131, 134

13 (2d Cir. 2007); see also Garcia-Villeda v. Mukasey, 531 F.3d

14 141, 149 (2d Cir. 2008) (“Parties claiming a denial of due

15 process in immigration cases must, in order to prevail,

16 allege some cognizable prejudice fairly attributable to the

17 challenged process.”).

18 For the foregoing reasons, the petition for review is

19 DISMISSED in part and DENIED in part. As we have completed

20 our review, any stay of removal that the Court previously

21 granted in this petition is VACATED, and any pending motion

22 for a stay of removal in this petition is DENIED as moot. 

23 Any pending request for oral argument in this petition is

5
1 DENIED in accordance with Federal Rule of Appellate

2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

3

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6

6