14-426
Weng v. Lynch
BIA
Sichel, IJ
A089 255 577
A076 143 153
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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
19th day of June, two thousand fifteen.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
LI YU WENG, HUI ZHOU,
Petitioners,
v. 14-426
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr. as Respondent.
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FOR PETITIONER: Joshua E. Bardavid, New York, New
York.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Kiley Kane, Senior
Litigation Counsel; Ann M. Welhaf,
United States Department of Justice,
Civil Division, Office of
Immigration Litigation, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Li Yu Weng and her husband, Hui Zhou, natives
and citizens of the People’s Republic of China, seek review of
a February 5, 2014, decision of the BIA affirming an April 27,
2012, decision of an Immigration Judge (“IJ”) denying Weng’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Li Yu Weng,
Hui Zhou, Nos. A089 255 577, A076 143 153 (B.I.A. Feb. 5, 2014),
aff’g Nos. A089 255 577, A076 143 153 (Immig. Ct. N.Y. City Apr.
27, 2012). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
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Under the circumstances of this case, we review the IJ’s
decision, including the portions not explicitly discussed by
the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.
2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For asylum applications such as Weng’s, governed by the
REAL ID Act of 2005, the agency may, considering the totality
of the circumstances, base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of her account, and inconsistencies in her
statements, so long as they reasonably support an inference that
the applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii);
see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
We defer “to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin, 534 F.3d at 167. In this case, the agency
reasonably based its adverse credibility determination on the
inherent implausibility of aspects of Weng’s claim and
discrepancies in her evidence.
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Substantial evidence supports an implausibility finding
if, as is the case here, “the reasons for [the IJ’s] incredulity
are evident” and “tethered to the record evidence.” Wensheng
Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). Weng claimed
that she began practicing Falun Gong after she was diagnosed
with diabetes, and that her practice alleviated her symptoms.
Weng testified that authorities arrested and detained her for
five days, during which they beat her and gave her very little
food and water. Weng also testified that while she was
detained, she did not notice any diabetes symptoms. After she
was released, she testified that she did not see a doctor about
her diabetes, despite feeling “greatly uncomfortable” because:
she saw a different doctor regarding the injuries she sustained
while detained; her diabetes doctor was far away; and she
thought that when her bruises cleared up, she would feel fine.
When asked why she did not go to her diabetes doctor after her
injuries healed and she still did not feel well, Weng answered
that she did not know.
The agency’s adverse credibility finding was further
supported by inconsistencies in Weng’s evidence and testimony.
Weng claimed that her friend who introduced her to the practice
4
of Falun Gong was arrested and detained for one month in China.
Weng initially testified that she did not learn about the arrest
until after she left China, but then testified that she learned
about the arrest before leaving China. When asked about the
discrepancy, Weng explained that she was nervous, an
explanation the agency was not compelled to accept. Majidi v.
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
Additionally, Weng gave discrepant reasons for why she had
not submitted medical documents regarding her diabetes: her
mother attempted to go to the clinic to get the records but could
not find it; the medical records were in her home in China and
her mother could not find them there; and her mother went to
the clinic, and the clinic staff told her that its practice was
to destroy all medical records shortly after seeing the patient.
Weng’s explanation was that she had meant to say that her mother
could not find the evidence, not that she could not find the
clinic. Weng submitted a letter from her mother, but it made
no mention of efforts to obtain Weng’s medical documents.
Because the REAL ID Act permits the agency to base a
credibility finding on the plausibility of an asylum
applicant’s account and inconsistencies in her statements
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regardless of whether they go to the heart of her claim, the
totality of the circumstances supports the agency’s adverse
credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii);
see Xiu Xia Lin, 534 F.3d at 167. Because the only evidence
of a threat to Weng’s life or freedom depended upon her
credibility, the agency’s finding that she was not credible
prevents her from prevailing on her claims for asylum,
withholding of removal, and CAT relief. Paul v. Gonzales, 444
F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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