12-3005
Weng v. Holder
BIA
Hom, IJ
A093 354 119
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 28th day of October, two thousand fourteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO-YING WENG,
14 Petitioner,
15
16 v. 12-3005
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
24 LLC, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Leslie McKay,
28 Assistant Director; Sara J. Bergene,
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 DISMISSED in part and in part DENIED.
5 Petitioner Xiao-Ying Weng, a native and citizen of
6 China, seeks review of a July 11, 2012, order of the BIA,
7 denying her motion to remand and affirming the December 10,
8 2010, decision of an Immigration Judge (“IJ”), which
9 pretermitted her application for asylum and denied
10 withholding of removal and relief under the Convention
11 Against Torture (“CAT”). In re Xiao-Ying Weng, No. A093 354
12 119 (B.I.A. July 11, 2012), aff’g No. A093 354 119 (Immig.
13 Ct. New York City Dec. 10, 2010). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 Under the circumstances of this case, we review the
17 decisions of both the IJ and the BIA. See Yun-Zui Guan v.
18 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
19 The applicable standards of review are well-established.
20 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
21 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
22
23
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1 I. Pretermission of Asylum
2 Title 8, Section 1158(a)(3) of the United States Code
3 provides that no court shall have jurisdiction to review the
4 agency’s finding that an asylum application was untimely
5 under 8 U.S.C. § 1158(a)(2)(B). However, we retain
6 jurisdiction to review constitutional claims and “questions
7 of law.” 8 U.S.C. § 1252(a)(2)(D).
8 Weng’s challenges to the agency’s pretermission of
9 asylum do not raise reviewable constitutional claims or
10 questions of law. See Xiao Ji Chen v. U.S. Dep’t of
11 Justice, 471 F.3d 315, 329 (2d Cir. 2006). Although Weng
12 correctly notes that the agency confused her alleged date of
13 departure from China with her alleged date of arrival in the
14 United States, this error was harmless and does not
15 constitute fact-finding that is flawed by an error of law
16 because the agency reasonably determined that Weng had not
17 established her arrival on any date within one year of her
18 application’s filing. See Mendez v. Holder, 566 F.3d 316,
19 323 (2d Cir. 2009). In addition, Weng’s assertion that the
20 agency did not apply the clear and convincing evidence
21 standard is contradicted by the record and merely employs
22 the rhetoric of a question of law to challenge the
3
1 correctness of the agency’s factual findings. See Xiao Ji
2 Chen, 471 F.3d at 329. Weng’s contention that the agency
3 committed an error of law by discrediting her bankbook and
4 medical records for a lack of authentication is also
5 misplaced because the agency identified additional bases for
6 according diminished weight to this evidence, which was not
7 authenticated by any means. See Cao He Lin v. U.S. Dep’t of
8 Justice, 428 F.3d 391, 403 (2d Cir. 2005). As a result, we
9 lack jurisdiction to consider the agency’s pretermission of
10 asylum.
11 II. Credibility-Based Denial of Forced Abortion Claim
12 For applications such as Weng’s, which are governed by
13 the REAL ID Act, the agency may base a credibility finding
14 on an applicant’s demeanor, the plausibility of her account,
15 and inconsistencies in her statements, without regard to
16 whether they go “to the heart of the applicant’s claim.” 8
17 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an IJ’s
18 credibility determination unless, from the totality of the
19 circumstances, it is plain that no reasonable fact-finder
20 could make such an adverse credibility ruling.” Xiu Xia
21 Lin, 534 F.3d at 167.
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1 Contrary to Weng’s assertions, the agency reasonably
2 based its adverse credibility determination on the
3 inconsistency between her testimony and application
4 regarding the number of people who took her for her forced
5 abortion. Xiu Xia Lin, 534 F.3d at 167. Although Weng
6 stated that she did not know why her application indicated
7 that five total people were present, rather than the four
8 people she testified to being present, the agency was not
9 required to credit her explanation, which is not necessarily
10 compelling to a reasonable fact-finder. See Majidi v.
11 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
12 Having called Weng’s credibility into question, the
13 agency reasonably determined that her failure to provide
14 sufficient corroborative evidence further undermined her
15 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273
16 (2d Cir. 2007) (per curiam); see also See Xiao Ji Chen, 471
17 F.3d at 342 (holding that the weight accorded to evidence
18 lies largely within the agency’s discretion). Contrary to
19 Weng’s assertions, the agency did not err in according
20 diminished weight to her family’s statements because they
21 were from interested witnesses not subject to
22 cross-examination. See Matter of H-L-H- & Z-Y-Z-, 25 I. &
23 N. Dec. 209, 214-215 (B.I.A. 2010), abrogated in part on
5
1 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d
2 Cir. 2012). In addition, while Weng argues that the agency
3 improperly declined to credit her medical records due to a
4 perceived inconsistency with her testimony regarding her
5 employment status, where, as here, the agency’s inference
6 “is tethered to the evidentiary record, we will accord
7 deference to the finding.” Siewe v. Gonzalez, 480 F.3d 160,
8 168-69 (2d Cir. 2007) (finding that “support for a contrary
9 inference – even one more plausible or more natural – does
10 not suggest error”). Regardless, the medical records did
11 not indicate that she had, in fact, had an abortion.
12 Because the agency reasonably determined that Weng
13 failed to credibly establish her eligibility for asylum on
14 the basis of her forced abortion claim, it did not err in
15 finding that she also failed to establish her eligibility
16 for withholding of removal and CAT relief on this basis.
17 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue
18 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d
19 Cir. 2005).
20 III. Burden-Based Denial of Underground Church Claim
21 Contrary to Weng’s assertion, the IJ did not misstate
22 the regulations or fail to assess whether there was a
23 reasonable possibility that she would be singled out
6
1 individually for persecution on account of her religious
2 activities. While Weng also asserts that the IJ failed to
3 address her contention that she would be singled out for
4 persecution as an underground church member due to her past
5 violation of the family policy, Weng failed to credibly
6 establish her past family planning policy violation. Weng’s
7 argument that the BIA misapplied the standard of review
8 under Hui Lin Huang v. Holder, is also misplaced because the
9 BIA applied clear error review to the IJ’s factual
10 determination that Weng would not be persecuted in China and
11 applied de novo review to the IJ’s ultimate determination
12 that Weng had not meet her burden of demonstrating a
13 well-founded fear of persecution. See 677 F.3d 130, 133-34
14 (2d Cir. 2012). Moreover, Weng does not challenge the
15 agency’s determination that the country conditions evidence
16 did not reflect incidents of religious repression in her
17 home province of Fujian.
18 Because the agency did not err in finding that Weng
19 failed to demonstrate a well-founded fear of persecution on
20 account of her religious activities, it also did not err in
21 finding that she failed to meet the higher burden required
22 for withholding of removal or CAT relief. See Lecaj v.
23 Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
7
1
2 IV. Motion to Remand
3 The BIA’s denial of a motion to remand that relies on
4 new evidence is held to the substantive standard for motions
5 to reopen, and is reviewed for abuse of discretion. Li Yong
6 Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir.
7 2005). “A motion to reopen proceedings shall not be granted
8 unless it appears to the Board that evidence sought to be
9 offered is material and was not available and could not have
10 been discovered or presented at the former hearing.” 8
11 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292, 294
12 & n.3 (2d Cir. 2006).
13 Contrary to Weng’s assertions, the BIA did not abuse
14 its discretion in denying her motion to remand. See Kaur v.
15 BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (per curiam). The
16 BIA reasonably determined that Weng’s evidence related to
17 her forced abortion claim was not material because it did
18 not rebut the prior adverse credibility determination. See
19 Kaur, 413 F.3d at 234 (affirming the BIA’s denial of an
20 untimely motion to reopen on the basis that the petitioner’s
21 evidence “was not ‘material’ because it did not rebut the
22 adverse credibility finding that provided the basis for the
23 IJ’s denial of petitioner’s underlying asylum application”
8
1 (citation omitted)). Similarly, the BIA did not err in
2 finding that Weng’s photographs of her religious activities
3 at her new church were immaterial because they did not
4 establish that the Chinese government was or would likely
5 become aware of her religious activities. See 8 C.F.R.
6 § 1003.2(c)(1); Hongsheng Leng v. Mukasey, 528 F.3d 135,
7 142-43 (2d Cir. 2008). Weng also argued that the evidence
8 concerning the birth of her second child in the United
9 States placed her in violation of the one-child policy, but
10 to the extent that Weng’s proffered evidence includes proof
11 of the birth of her second child, it is nevertheless
12 immaterial because the record contains no evidence
13 demonstrating that Weng would likely be persecuted in China
14 for violating the one-child policy. See Matter of H-L-H- &
15 Z-Y-Z-, 25 I. & N. Dec. 209, 213-14 (BIA 2010), abrograted
16 in part on other grounds by Hui Lin Huang v. Holder, 677
17 F.3d 130 (2d Cir. 2012); see also Matter of S-Y-G-, 24 I. &
18 N. Dec. 247, 255 (BIA 2007).
19 For the foregoing reasons, the petition for review is
20 DISMISSED, as it relates to the agency’s pretermission
21 asylum, and DENIED, in all other respects. As we have
22 completed our review, any stay of removal that the Court
23 previously granted in this petition is VACATED, and any
9
1 pending motion for a stay of removal in this petition is
2 DISMISSED as moot. Any pending request for oral argument in
3 this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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