12-3165
Weng v. Holder
BIA
Laforest, IJ
A089 844 486
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 17th day of December, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 YU GANG WENG,
14 Petitioner,
15
16 v. 12-3165
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Vlad Kuzmin, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Leslie Mckay,
27 Assistant Director; Anthony J.
28 Messuri, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Yu Gang Weng, a native and citizen of the People’s
6 Republic of China, seeks review of a July 13, 2012, decision
7 of the BIA affirming the January 11, 2011, decision of
8 Immigration Judge (“IJ”) Brigitte Laforest, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Yu Gang
11 Weng, No. A089 844 486 (B.I.A. July 13, 2012), aff’g No.
12 A089 844 486 (Immig. Ct. N.Y. City Jan. 11, 2011). We
13 assume the parties’ familiarity with the underlying facts,
14 procedural history, and issues presented for review.
15 Under the circumstances of this case, we consider both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
20 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 For asylum applications, such as Weng’s, governed by
22 the amendments to the Immigration and Nationality Act by the
23 REAL ID Act of 2005, the agency may, “[c]onsidering the
2
1 totality of the circumstances,” base a credibility finding
2 on any inconsistencies in the applicant’s statements,
3 without regard to whether the inconsistencies go “to the
4 heart of the applicant’s claim.” See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
6 167 (2d Cir. 2008) (per curiam).
7 The agency’s adverse credibility determination is
8 supported by substantial evidence. The IJ reasonably found
9 that Weng was not credible because, inter alia, his hearing
10 testimony (1) was internally inconsistent as to the length
11 of his detention (ranging from ten days to twelve days to
12 twenty days); (2) contradicted his written declaration and
13 other documentary evidence as to the length of his
14 detention; (3) conflicted with four written statements from
15 others as to the date of his release from detention; and (4)
16 contradicted medical records as to when he needed medical
17 attention for injuries he allegedly suffered in detention.
18 Although Weng offered explanations for the inconsistencies
19 and contradictions, Weng did not demonstrate that the agency
20 was required to credit his explanations, see Majidi v.
21 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (to secure
22 relief, a petitioner must demonstrate that a reasonable
3
1 fact-finder would be compelled to credit his testimony), and
2 we are not able to consider one of his explanations in any
3 event because he failed to present it to the agency, see Lin
4 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-22 (2d
5 Cir. 2007) (“[W]hen an applicant for asylum or withholding
6 of removal has failed to exhaust an issue before the BIA,
7 and that issue is, therefore, not addressed in a reasoned
8 BIA decision, we are . . . usually unable to review the
9 argument.”).
10 Weng argues that the discrepancies which the agency
11 relied on are minor and isolated. While it is true that, in
12 some cases, minor and isolated discrepancies about dates
13 would not render an applicant incredible, see Xiu Xia Lin,
14 534 F.3d at 167, here, the discrepancies in Weng’s testimony
15 were not minor or isolated as they related to the central
16 elements of his claim -- that he was detained in China for
17 his practice of Falun Gong and that he continues to practice
18 Falun Gong in the United States -- and pervade his
19 testimony.
20 Accordingly, as the record contains substantial
21 evidence to support the agency’s adverse credibility
22 determination, Xiu Xia Lin, 534 F.3d at 167, and as the only
4
1 evidence of a threat to Weng’s life or freedom depended upon
2 his credibility, the adverse credibility determination in
3 this case is dispositive of his claims for asylum,
4 withholding of removal, and CAT relief, see Paul v.
5 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
6 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
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 DENIED 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
5