14-503
Wen v.Lynch
BIA
Christensen, IJ
A200 168 496
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.
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 September, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 JOHN M. WALKER, JR.,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 MING WEN,
15 Petitioner,
16
17 v. 14-503
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Scott E. Bratton, Cleveland, Ohio.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Jesi J. Carlson,
28 Senior Litigation Counsel; Andrew C.
29 MacLachlan, Senior Litigation
1 Counsel; Natasha Domek, Law Clerk,
2 Office of Immigration Litigation,
3 United States Department of Justice,
4 Washington D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Ming Wen, a native and citizen of China, seeks review
10 of a January 31, 2014, decision of the BIA, affirming the
11 August 1, 2012, decision of an Immigration Judge (“IJ”),
12 denying his application for asylum, withholding of removal,
13 and relief pursuant to the Convention Against Torture
14 (“CAT”). In re Ming Wen, No. A200 168 496 (B.I.A. Jan. 31,
15 2014), aff’g No. A200 168 496 (Immig. Ct. N.Y. City Aug. 1,
16 2012). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 the IJ’s and BIA’s decisions “for the sake of completeness.”
20 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
21 Cir. 2006). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
23 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
24
2
1 For asylum applications like Wen’s, governed by the
2 REAL ID Act of 2005, the agency may, “[c]onsidering the
3 totality of the circumstances,” base a credibility
4 determination on an asylum applicant’s demeanor, the
5 plausibility of his account, and inconsistencies in his
6 statements and other record evidence, “without regard to
7 whether” they go “to the heart of the applicant’s claim.” 8
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
9 credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling.” Xiu Xia Lin
12 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
13 Here, substantial evidence supports the agency’s adverse
14 credibility determination.
15 The agency reasonably relied in part on Wen’s demeanor,
16 noting that his testimony was at times evasive and
17 unresponsive. See 8 U.S.C. § 1158(b)(1)(B)(iii); Shu Wen
18 Sun v. BIA, 510 F.3d 377, 381 (2d Cir. 2007) (per curiam).
19 That finding is supported by the hearing transcript.
20 The agency’s overall credibility determination was
21 bolstered by implausibilities and inconsistencies in Wen’s
22 statements regarding his Chinese Democratic Party (“CDP”)
23 activities. See Li Hua Lin v. U.S. Dep’t of Justice, 453
3
1 F.3d 99, 109 (2d Cir. 2006); Xiu Xia Lin, 534 F.3d at 165-
2 66. The agency reasonably found it implausible that, in a
3 single day, Wen learned about the CDP from a flyer, called
4 and then met with its chairman, attended a CDP class, wired
5 money to a CDP member in China, and wrote an article
6 published on the CDP website. See Wensheng Yan v. Mukasey,
7 509 F.3d 63, 66-67 (2d Cir. 2007)(per curiam); Siewe v.
8 Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (providing
9 that, in the context of an implausibility finding,
10 “speculation that inheres in inference is not ‘bald’ if the
11 inference is made available to the factfinder by record
12 facts, or even a single fact, viewed in the light of common
13 sense and ordinary experience.”). Indeed, the
14 implausibility of this account was borne out by Wen’s later
15 inconsistent testimony that these events did not occur in a
16 single day. Wen did not provide a compelling explanation
17 for his inconsistent testimony. See Majidi v. Gonzales, 430
18 F.3d 77, 80-81 (2d Cir. 2005).
19 Finally, in light of its credibility findings with
20 respect to Wen, the agency reasonably found that his wife’s
21 unsworn letter was entitled to limited weight and thus
22 failed to rehabilitate his testimony. See Biao Yang v.
23 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam);
4
1 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
2 Cir. 2006). Given the demeanor, inconsistency,
3 implausibility, and corroboration findings, the totality of
4 the circumstances supports the agency’s adverse credibility
5 determination. See Xiu Xia Lin, 534 F.3d at 167. That
6 determination is dispositive of asylum, withholding of
7 removal, and CAT relief as those claims are based on the
8 same factual predicate. Paul v. Gonzales, 444 F.3d 148,
9 156-57 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DENIED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
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