Rong Hui Weng v. Holder , 354 F. App'x 508 ( 2009 )

08-6038-ag
Weng v. Holder
BIA
Mulligan, IJ
A078 144 144
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 30 th day of November, two thousand nine.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 GUIDO CALABRESI,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _______________________________________
12
13 RONG HUI WENG, ALSO KNOWN AS
14 RONG HUI WONG,
15 Petitioner,
16
17 v. 08-6038-ag
18 NAC
19 ERIC H. HOLDER, JR., 1 UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Dehai Zhang, Flushing, New York.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; Barry J. Pettinato,
5 Assistant Director; Tim Ramnitz,
6 Attorney, Office of Immigration
7 Litigation, United States Department
8 of Justice, Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED, that the petition for review
13 is DENIED.
14 Rong Hui Weng, a native and citizen of China, seeks
15 review of the November 17, 2008 order of the BIA affirming
16 the September 25, 2007 decision of Immigration Judge (“IJ”)
17 Thomas J. Mulligan, which denied his application for asylum,
18 withholding of removal, and relief under the Convention
19 Against Torture (“CAT”). In re Rong Hui Weng, No. A078 144
20 144 (B.I.A. Nov. 17, 2008), aff’g No. A078 144 144 (Immig.
21 Ct. N.Y. City Sept. 25, 2007). We assume the parties’
22 familiarity with the underlying facts and procedural history
23 in this case.
24 When the BIA agrees with the IJ that a petitioner is
25 not credible and, without rejecting any of the IJ’s grounds
26 for decision, emphasizes particular aspects of that
27 decision, we review both decisions – or more precisely, we
2
1 review the IJ’s decision including the portions not
2 explicitly discussed by the BIA. See Yun-Zui Guan v.
3 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) . We review the
4 agency’s factual findings, including adverse credibility
5 determinations, under the substantial evidence standard.
6 See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey,
7 519 F.3d 90, 95 (2d Cir. 2008) . Questions of law and the
8 application of law to undisputed fact are reviewed de novo.
9 See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
10 2008).
11 Substantial evidence supports the agency’s adverse
12 credibility determination. First, we defer to the IJ’s
13 finding that Weng’s demeanor supported an adverse
14 credibility determination. See Majidi v. Gonzales, 430 F.3d
15 77, 81 n.1. (2d Cir. 2005). The IJ also reasonably relied
16 on discrepancies between Weng’s testimony, his asylum
17 application, and the record of his airport interview. In
18 his airport interview, Weng stated that he was afraid to
19 return to China because he “made a girl pregnant.” However,
20 Weng indicated in his asylum application and during his
21 testimony that he feared arrest in China after a village
22 official falsely accused him of selling pornography. When
3
1 confronted with this discrepancy, Weng testified that he
2 made false statements during his airport interview because
3 he was “very, very nervous” and feared the immigration
4 officials.
5 When an IJ bases an adverse credibility determination
6 on discrepancies arising from an applicant’s statements in
7 an airport interview, this Court examines the interview to
8 ensure that it represents a “sufficiently accurate record”
9 of the applicant’s statements. Ramsameachire v. Ashcroft,
10 357 F.3d 169, 179 (2d Cir. 2004) . Here, it is clear that on
11 remand the agency considered the factors discussed in
12 Ramsameachire and reasonably determined that the airport
13 interview was sufficiently reliable. The IJ noted that the
14 record of the interview was detailed, providing verbatim
15 questions and answers. And though he recognized that the
16 record incorrectly stated that the interview was conducted
17 in “Chinese,” Weng testified that the interview was
18 conducted in Mandarin and that he had no problem
19 communicating or understanding the questions. Nor did
20 Weng’s claim that he was nervous and fearful preclude the
21 agency from relying on the interview as a basis for its
22 adverse credibility determination, as the IJ considered this
4
1 claim and gave the interview reduced weight because of it.
2 See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396, 397 n.6,
3 399 n.8 (2d Cir. 2005).
4 The IJ also reasonably relied on other discrepancies in
5 the record. The IJ observed that, while Weng testified that
6 Chinese authorities accused him only of selling pornography,
7 statements from his parents and friend indicated that he was
8 accused of selling pornography and Falun Gong materials.
9 Further, while Weng testified that his parents did not know
10 how to write, their written statement appeared in the
11 record. Though Weng has offered plausible explanations for
12 at least some of these discrepancies, he has failed to show,
13 as he must, that a reasonable fact finder would be compelled
14 to credit his testimony. See Majidi, 430 F.3d at 80-81.
15 Ultimately, the agency’s adverse credibility
16 determination was supported by substantial evidence.
17 Accordingly, the agency properly denied Weng’s application
18 for asylum, withholding of removal, and CAT relief because
19 all three claims were based on the same factual predicate.
20 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006);
21 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523
22 (2d Cir. 2005).
23 For the foregoing reasons, the petition for review is
5
1 DENIED. As we have completed our review, any stay of
2 removal that the Court previously granted in this petition
3 is VACATED, and any pending motion for a stay of removal in
4 this petition is DISMISSED as moot. Any pending request for
5 oral argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11 By:___________________________
6