He Weng v. Lynch ( 2015 )

13-1542
Weng v. Lynch
BIA
Balasquide, IJ
A095 800 492
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,
4 on the 14th day of July, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 HE WENG,
14 Petitioner,
15
16 v. 13-1542
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: G. Victoria Calle, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Anh-thu Mai-windle, Senior
28 Litigation Counsel; Jeffrey Meyer,
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, 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 DENIED.
5 He Weng, a native and citizen of China, seeks review of
6 a March 29, 2013, decision of the BIA affirming the August
7 15, 2011, decision of Immigration Judge (“IJ”) Javier
8 Balasquide, which denied his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re He Song, No. A095 800 492
11 (B.I.A. Mar. 29, 2013), aff’g No. A095 800 492 (Immig. Ct.
12 N.Y. City Aug. 15, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales,
17 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
18 of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
20 (2d Cir. 2009).
21 For asylum applications, like Weng’s, governed by the
22 REAL ID Act, the agency may, “[c]onsidering the totality of
23 the circumstances,” base a credibility finding on an asylum
2
1 applicant’s “demeanor, candor, or responsiveness,” and the
2 plausibility and consistency of his account, without regard
3 to whether they go “to the heart of the applicant’s claim.”
4 See 8 U.S.C.§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia
5 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer
6 to an IJ’s credibility determination unless, from the
7 totality of the circumstances, it is plain that no
8 reasonable fact-finder could make such an adverse
9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
10 Here, the totality of the circumstances supports the
11 agency’s adverse credibility determination. The agency
12 reasonably found that Weng’s testimony regarding when he
13 began attending an underground church was inconsistent with
14 the letter he provided from the government church. Weng had
15 “no idea” why the letter contradicted his testimony. The
16 date that Weng began attending the underground church went
17 to the heart of his claim; thus the agency’s reliance on
18 this inconsistency was reasonable. See 8 U.S.C. §§
19 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
20 The adverse credibility finding also rested on letters
21 from his mother and a friend in the underground church,
22 which strongly suggested that he had been baptized there
3
1 rather than in a government church, as he testified. Again,
2 Weng provided no explanation for the inconsistency. See
3 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
4 Furthermore, the agency reasonably relied upon Weng’s
5 failure to provide any particulars about his three month
6 detention in China. See Yan Juan Chen v. Holder, 658 F.3d
7 246, 252 (2d Cir. 2011).
8 Because Weng’s own testimony was inconsistent and
9 lacked detail, the agency reasonably required corroboration.
10 See Biao Yang v. Gonzales v. Gonzales, 496 F.3d 268, 273 (2d
11 Cir. 2007). Substantial evidence supports the finding that
12 Weng failed to corroborate his claim. Weng testified that
13 he had been attending church for nearly two years in the
14 United States; yet he stated that he had no friends in the
15 church who would testify on his behalf, that the pastor
16 refused to make himself available even telephonically, and
17 that his family was similarly unable to appear on his
18 behalf. The totality of the circumstances supports the
19 agency’s adverse credibility finding. See Xiu Xia Lin, 534
20 F.3d at 167.
21 Because the only evidence of a threat to Weng’s life or
22 freedom depended upon his credibility, the adverse
4
1 credibility determination also defeats his claim for
2 withholding of removal and CAT relief. See Paul v.
3 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
5