Min Weng v. Holder ( 2010 )

09-2624-ag
Weng v. Holder
BIA
DeFonzo, IJ
A095 716 343
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27 th day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 MIN WENG,
14 Petitioner,
15
16 v. 09-2624-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; Christopher
27 C. Fuller, Senior Litigation
28 Counsel; Ann Carroll Varnon,
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 Min Weng, a native and citizen of the People’s Republic
6 of China, seeks review of a May 28, 2009, order of the BIA,
7 affirming the September 5, 2007, decision of Immigration
8 Judge (“IJ”) Paul A. DeFonzo, which denied her application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Min Weng, No.
11 A095 716 343 (B.I.A. May 28, 2009), aff’g No. A095 716 343
12 (Immig. Ct. N.Y. City Sept. 5, 2007). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision, including the portions not explicitly
17 discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
18 391, 394 (2d Cir. 2005). The applicable standards of review
19 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
20 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
21 As an initial matter, because Weng failed to challenge
22 the quality of the transcript in her appeal to the BIA, and
23 because the Government has raised this failure to exhaust in
2
1 its brief to this Court, we decline to consider this issue.
2 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d
3 Cir. 2007) (describing the issue exhaustion requirement as
4 an “affirmative defense subject to waiver”). Moreover, as
5 the government has pointed out, because Weng withdrew her
6 CAT claim during her proceedings before the IJ, and did not
7 challenge the denial of CAT relief before the BIA, we deem
8 her arguments regarding CAT relief abandoned. See Gui Yin
9 Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).
10 Accordingly, the only claims addressed here are Weng’s
11 challenges to the denial of asylum and withholding of
12 removal based on the IJ’s adverse credibility determination.
13 Under the REAL ID Act, which applies to Weng’s
14 application for relief, “an IJ may rely on any inconsistency
15 or omission in making an adverse credibility determination
16 as long as the ‘totality of the circumstances’ establishes
17 that an asylum applicant is not credible.” Xiu Xia Lin v.
18 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see Matter of J-
19 Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007) (finding that “the
20 REAL ID Act no longer requires the trier of fact to find a
21 nexus between inconsistencies and the ‘heart of the
22 claim’”).
3
1 Substantial evidence supports the IJ’s adverse
2 credibility determination. See Xiu Xia Lin, 534 F.3d at
3 167. The IJ found Weng not credible because: (1) she
4 claimed at her airport interview that she was pregnant, but
5 thereafter claimed at her credible fear interview and in her
6 asylum application that she had been forced to undergo an
7 abortion; (2) she failed to provide reasonably available
8 corroborating evidence; (3) a letter from her boyfriend did
9 not provide any details to corroborate her claim; and (4)
10 her explanation regarding how she obtained her abortion
11 certificate was implausible. We are not compelled to find
12 error in any of these findings, or in the IJ’s refusal to
13 credit the explanations Weng offered. See Majidi v.
14 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Because Weng
15 was not otherwise credible, the IJ was not required to
16 afford her further opportunities to explain before finding
17 that the absence of letters from her family members rendered
18 her unable to rehabilitate her questionable testimony. See
19 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d
20 Cir. 2006). Moreover, the IJ reasonably accorded little
21 evidentiary weight to both the letter from Weng’s boyfriend
22 and her abortion certificate, because the IJ also relied on
4
1 the facts that there was inconsistent testimony regarding
2 the abortion certificate and the boyfriend’s letter did not
3 actually mention a forced abortion. See id. at 342; see also
4 Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-05
5 (2d Cir. 2005) (holding that an IJ may not reject an asylum-
6 seeker’s document solely because the document was not
7 authenticated pursuant to 8 C.F.R. § 287.6) (emphasis
8 added).
9 Because Weng’s statement at her airport interview,
10 coupled with the discrepancies regarding her corroborating
11 evidence, provides ample support for the IJ’s adverse
12 credibility determination, we need not reach the IJ’s
13 additional findings of inconsistencies within Weng’s
14 testimony and asylum application. Accordingly, the agency’s
15 denial of Weng’s application for asylum and withholding of
16 removal was proper. See Paul v. Gonzales, 444 F.3d 148, 156
17 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6