Jian Ming Weng v. Holder ( 2011 )

10-279-ag
Weng v. Holder
BIA
Mulligan, IJ
A089 253 941
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 18th day of April, two thousand eleven.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 REENA RAGGI,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN MING WENG,
14 Petitioner,
15
16 v. 10-279-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Feng Li, Moslemi and Associates,
24 Inc., New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Jennifer L. Lightbody,
28 Assistant Director; Todd J. Cochran,
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 DENIED.
5 Petitioner Jian Ming Weng, a native and citizen of the
6 People’s Republic of China, seeks review of a January 7,
7 2010, order of the BIA, affirming the August 6, 2008,
8 decision of Immigration Judge (“IJ”) Thomas Mulligan, which
9 denied his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Jian Ming Weng, No. A089 253 941 (B.I.A. Jan. 7, 2010),
12 aff’g No. A089 253 941 (Immig. Ct. N.Y. City Aug. 6, 2008).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as modified by the BIA decision, i.e., minus
17 the arguments for denying relief that were rejected by the
18 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
19 520, 522 (2d Cir. 2005). The applicable standards of review
20 are well-established. See Shu Wen Sun v. BIA, 510 F.3d 377,
21 379 (2d Cir. 2007); Salimatou Bah v. Mukasey, 529 F.3d 99,
22 110 (2d Cir. 2008). For applications governed by the REAL
23 ID Act of 2005, the agency may, considering the totality of
2
1 the circumstances, base a credibility finding on an asylum
2 applicant’s demeanor, the plausibility of his account, and
3 inconsistencies in his statements, without regard to whether
4 they go “to the heart of the applicant’s claim.” 8 U.S.C.
5 § 1158(b)(1)(B)(iii); see also Matter of J-Y-C-, 24 I. & N.
6 Dec. 260, 265 (BIA 2007). Analyzed under the REAL ID Act,
7 the agency’s adverse credibility determination is supported
8 by substantial evidence.
9 In finding Weng’s testimony not credible, the IJ relied
10 in part on his demeanor, noting that his affect changed when
11 questioned on cross-examination and that he exhibited
12 indicia of anxiety. Because the IJ was in the best position
13 to observe Weng’s manner while testifying, we afford his
14 demeanor finding particular deference. See Shu Wen Sun, 510
15 F.3d at 380-81; Jin Chen v. U.S. Dep’t of Justice, 426 F.3d
16 104, 113 (2d Cir. 2005), Zhou Yun Zhang v. INS, 386 F.3d 66,
17 73-74 (2d Cir. 2004), overruled on other grounds by Shi
18 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
19 2007).
20 In finding Weng not credible, the agency also
21 reasonably relied on inconsistencies in his testimony. See
22 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
3
1 First, the IJ noted that Weng’s testimony was not consistent
2 with his documentary evidence with respect to his claim that
3 police monitored his house while he was in China. When
4 asked why his written submissions omitted his claim that the
5 police monitored him at home, he answered that he “forgot to
6 write it,” and that his mother “probably thought that it was
7 not important” to include in her letter. However, the
8 agency was entitled to disregard these explanations as they
9 would not necessarily be compelling to a reasonable
10 factfinder. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
11 Cir. 2005).
12 The agency also found that Weng’s testimony that the
13 police had visited his parents after he fled China and
14 threatened that he would be arrested upon his return was
15 inconsistent with his documentary submissions. With regard
16 to this finding, the IJ erroneously stated “there is
17 absolutely nothing in [Weng’s] statement indicating that the
18 police contacted his parents after he left the residence.”
19 In fact, Weng’s statement does convey that the police
20 contacted his parents after he fled China, saying “[n]ow
21 they found that I did not report so they already threatened
22 my parents that they would arrest and sentence me.” The
4
1 BIA, however, rephrased this finding, noting that Weng
2 testified that the police had contacted his parents “[m]any
3 times,” a detail that was omitted from Weng’s documentary
4 evidence. Using its modified finding, the BIA did not err
5 in relying, in part, on the omission to find Weng not
6 credible. See Xiu Xia Lin, 534 F.3d at 166 n.3 (noting that
7 an “omission in a document submitted to corroborate the
8 applicant’s testimony, like a direct inconsistency . . . can
9 serve as a proper basis for an adverse credibility
10 determination”). Moreover, the BIA’s decision illustrates
11 that remand for it to address the IJ’s error would be
12 futile, as it upheld the IJ’s adverse credibility
13 determination without relying on the erroneous aspect of his
14 finding. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d
15 391 (2d Cir. 2005). Finally, the agency reasonably
16 discounted Weng’s explanation that his mother’s letter did
17 not mention that the police came looking for him on multiple
18 occasions because she was not highly educated. See Majidi,
19 430 F.3d at 80-81.
20 In light of the agency’s demeanor and adverse
21 credibility findings, the agency did not err in denying
22 Weng’s application for relief. See Shu Wen Sun, 510 F.3d at23 380-81; Xiu Xia Lin, 534 F.3d at 167. Thus, the agency’s
5
1 denial of his application for asylum, withholding of
2 removal, and CAT relief was not in error as all three claims
3 shared the same factual predicate. See Paul v. Gonzales,
4 444 F.3d 148, 156 (2d Cir. 2006) (withholding of removal);
5 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523
6 (2d Cir. 2005) (CAT).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
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