15-2771 Weng v. Yates BIA Poczter, IJ A205 628 473

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CORRECTED 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 TO 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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 25th day of January, two thousand seventeen. 5 6 PRESENT: 7 REENA RAGGI, 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 JIANQUAN WENG, 14 Petitioner, 15 16 v. 15-2771 17 NAC 18 SALLY Q. YATES, UNITED STATES 19 ACTING ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: G. Victoria Calle, New York, N.Y. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Anthony 27 P. Nicastro, Assistant Director; 28 Drew Brinkman, Trial Attorney, 29 Office of Immigration Litigation, 1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Sally Q. Yates is automatically substituted for former Attorney General Loretta E. Lynch as Respondent. 1 United States Department of Justice, 2 Washington, D.C. 3 UPON DUE CONSIDERATION of this petition for review of a

4 Board of Immigration Appeals (“BIA”) decision, it is hereby

5 ORDERED, ADJUDGED, AND DECREED that the petition for review is

6 DENIED.

7 Petitioner Jianquan Weng, a native and citizen of the

8 People’s Republic of China, seeks review of an August 11, 2015,

9 decision of the BIA, affirming a March 6, 2014, decision of an

10 Immigration Judge (“IJ”) denying Weng’s application for asylum,

11 withholding of removal, and relief under the Convention Against

12 Torture (“CAT”). In re Jianquan Weng, No. A205 628 473 (B.I.A.

13 Aug. 11, 2015), aff’g No. A205 628 473 (Immig. Ct. N.Y. City

, 2014). We assume the parties’ familiarity with the

15 underlying facts and procedural history in this case.

16 Under the circumstances of this case, we have reviewed both

17 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432

(2d Cir. 2005). The applicable standards of

19 review are well established. See

(b)(4)(B);

20 Xiu Xia Lin v. Mukasey,

(2d Cir. 2008).

21 For asylum applications like Weng’s, governed by the REAL

22 ID Act, the agency may, “[c]onsidering the totality of the

23 circumstances,” base a credibility finding on the plausibility

2 1 of an applicant’s account and inconsistencies and omissions in

2 the applicant’s statements and his witness’s statements and

3 evidence, “without regard to whether” those inconsistencies go

4 “to the heart of the applicant’s claim.” 8 U.S.C.

5 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

. “We

6 defer . . . to an IJ’s credibility determination unless, from

7 the totality of the circumstances, it is plain that no

8 reasonable fact-finder could make such an adverse credibility

9 ruling.” Xiu Xia Lin,

. The adverse

10 credibility determination rests on substantial evidence.

11 The agency reasonably relied on inconsistencies among

12 Weng’s testimony, statements, and evidence concerning his

13 practice of Christianity in China. 8 U.S.C.

14 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

. On direct

15 examination, Weng testified that he began attending an

16 underground church as an adult in June 2009; on cross

17 examination, however, Weng said that he had attended church when

18 he was five or six years old and did so for two years. Weng

19 sought to explain the inconsistency by asserting that he “was

20 just a child” who went there to play, that he understood the

21 question to mean when he began attending regularly, and that

22 the attorney for the Department of Homeland Security asked when

3 1 he was introduced to Christianity, not when he began attending

2 an underground church. The agency reasonably rejected Weng’s

3 explanations. “A petitioner must do more than offer a

4 plausible explanation for his inconsistent statements to secure

5 relief; he must demonstrate that a reasonable fact-finder would

6 be compelled to credit his testimony.” Majidi v. Gonzales, 430

7

, 80 (2d Cir. 2005) (quoting Zhou Yun Zhang v. INS, 386

8

(2d Cir. 2004)). Moreover, Weng could not state

9 unequivocally whether his siblings attended church. The IJ

10 reasonably concluded that this called into question whether

11 Weng actually came from a devout family, as he claimed, and

12 suggested that Weng embellished his testimony. See Majidi, 430

13 F.3d at 80.

14 In addition, the agency reasonably rested the adverse

15 credibility determination on inconsistencies in Weng’s

16 description of his purported arrest in China, the only alleged

17 incident of persecution. See Xian Tuan Ye v. Dep’t of Homeland

18 Sec.,

(2d Cir. 2006). Although Weng testified

19 that, on the day of his arrest, his parents had “some other

20 business” and did not attend church with him, his mother’s

21 letter states that she was out of town on that day.

22 Finally, additional inconsistencies concerning Weng’s

4 1 past practice and his family’s practice of Christianity support

2 the adverse credibility determination. See Xiu Xia Lin, 534

3 F.3d at 167. First, the letter submitted by Weng’s mother did

4 not corroborate Weng’s testimony that his parents attended an

5 underground church until his 2012 arrest, when they began

6 attending a government church. Moreover, a 2011 official

7 household register listed Weng’s parents’ religion as

8 Christianity, which conflicts with his claim that they

9 practiced Christianity in secret. Second, Weng’s testimony

10 and evidence regarding his brother was inconsistent. The

11 household register listed Christianity as Weng’s brother’s

12 religion, but Weng testified that only he and his parents

13 practiced Christianity. Third, the agency also reasonably

14 found Weng not credible regarding his practice of Christianity

15 in the United States. Weng and his witness provided

16 inconsistent testimony on this point. 8 U.S.C.

17 § 1158(b)(1)(B)(iii). Weng testified that he and his

18 childhood friend attend church together in the United States,

19 although they had not recently because his friend was working

20 in Los Angeles. But the witness testified that he never

21 attended church services with Weng and was working in San Jose.

22 Weng’s explanations for these inconsistencies are not

5 1 compelling. See Majidi, 430 F.3d at 80.

2 Having questioned Weng’s credibility, the agency did not

3 err in concluding that Weng’s lack of corroborating evidence

4 further undermined his credibility. See Biao Yang v. Gonzales,

5

(2d Cir. 2007). Weng has not challenged that

6 finding.

7 Given the multiple inconsistencies identified going both

8 to past events and to Weng’s continuing practice of

9 Christianity, as well as the lack of corroboration, we conclude

10 that a “reasonable fact-finder could make such an adverse

11 credibility ruling.” Xiu Xia Lin,

. The

12 adverse credibility ruling is dispositive of asylum,

13 withholding of removal, and CAT relief because all three forms

14 of relief are based on the same factual predicate. Paul v.

15 Gonzales,

(2d Cir. 2006).

16 For the foregoing reasons, the petition for review is

17 DENIED. As we have completed our review, the pending motion

18 for a stay of removal in this petition is DISMISSED as moot.

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk

6