09-0640-ag
Weng v. Holder
BIA
Chew, IJ
A077-322-541
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15 th day of January, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 ______________________________________
13
14 MEI FANG WENG,
15 Petitioner,
16
17 v. 09-0640-ag
18 NAC
19 UNITED STATES DEPARTMENT OF JUSTICE,
20 AND ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondents.
23 ______________________________________
24
25 FOR PETITIONER: Yee Ling Poon (Robert Duk-Hwan Kim,
26 on the brief), New York, N.Y.
27
1 FOR RESPONDENTS: Tony West, Assistant Attorney
2 General, Civil Division; Shelley R.
3 Goad, Senior Litigation Counsel;
4 Katharine E. Clark, Trial Attorney,
5 United States Department of Justice,
6 Civil Division, Office of
7 Immigration Litigation, Washington,
8 D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner, Mei Fang Weng, a native and citizen of the
15 People’s Republic of China, seeks review of a January 23,
16 2009 order of the BIA affirming the November 5, 2002
17 decision of Immigration Judge (“IJ”) George T. Chew denying
18 Weng’s application for asylum, withholding of removal, and
19 relief under the Convention Against Torture (“CAT”). In re
20 Mei Fang Weng, No. A 077 322 541 (B.I.A. Jan. 23, 2009),
21 aff’g No. A 077 322 541 (Immig. Ct. N.Y. City Nov. 5, 2002).
22 We assume the parties’ familiarity with the underlying facts
23 and procedural history of the case.
24 I. Scope of Review
25 When the BIA adopts the conclusions of the IJ and
26 upholds the IJ’s adverse credibility finding, but does so
27 for reasons other than those cited in the IJ’s decision,
2
1 this Court reviews the decision of the IJ as supplemented by
2 the BIA, provided that the BIA’s supplemental findings do
3 not extend beyond the scope of its review under 8 C.F.R.
4 § 1003.1(d)(3)(i), (iv). See Xian Tuan Ye v. DHS, 446 F.3d
5 289, 293, 296 (2d Cir. 2006). Weng asserts that the BIA did
6 not clearly affirm the IJ’s adverse credibility
7 determination. That argument lacks merit because the BIA
8 found no error in the IJ’s denial of Weng’s application for
9 relief “for failing to meet her burden of proof” and noted
10 that the IJ’s decision was based on an adverse credibility
11 determination.
12 In affirming the IJ’s credibility determination, the
13 BIA made an additional finding concerning Weng’s credibility
14 – that the submission of an abortion certificate was
15 inconsistent with country conditions evidence indicating
16 that such certificates are only issued for voluntary
17 abortions. Weng asserts that this constituted impermissible
18 factfinding. See 8 C.F.R. § 1003.1(d)(3). However, in the
19 IJ’s July 2001 decision, which was superceded by his
20 November 2002 decision, the IJ made much the same finding as
21 the BIA. Thus, the BIA’s finding was based on facts already
22 in the record. See Xian Tuan Ye, 446 F.3d at 296.
3
1 II. Adverse Credibility Determination
2 We review the agency’s factual findings, including
3 adverse credibility findings, under the substantial evidence
4 standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.
5 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo
6 questions of law and the application of law to undisputed
7 fact. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
8 Substantial evidence supports the agency’s adverse
9 credibility determination. See Corovic, 519 F.3d at 95. As
10 the IJ found, Weng testified that she was working as a
11 school teacher when she found out she was pregnant, but the
12 abortion certificate she submitted listed her occupation as
13 “housework.” Although Weng asserts that she adequately
14 explained this inconsistency, her explanation would not
15 compel a reasonable factfinder to credit it. See Majidi v.
16 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Additionally,
17 the BIA reasonably found that Weng’s submission of an
18 abortion certificate undermined her claim that her abortion
19 was forced in light of country conditions evidence
20 indicating that such certificates are generally only issued
21 for voluntary abortions. See Xiao Xing Ni v. Gonzales, 494
22 F.3d 260, 263 (2d Cir. 2007); Tu Lin v. Gonzales, 446 F.3d
4
1 395, 400 (2d Cir. 2006).
2 The agency also reasonably found that Weng’s failure to
3 provide any corroborating letters or affidavits from any of
4 the individuals she mentioned during her testimony further
5 placed her credibility in question. See Biao Yang v.
6 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Contrary to
7 Weng’s assertion, an IJ need not first identify the
8 particular pieces of missing, relevant evidence, and show
9 that this evidence was reasonably available to the applicant
10 before relying on a lack of corroboration to support an
11 adverse credibility finding. See Diallo v. Gonzales, 445
12 F.3d 624, 633-34 (2d Cir. 2006). Because Weng’s testimony
13 was not otherwise credible, the agency properly relied on
14 the lack of corroborative evidence.
15 Because substantial evidence supports the agency’s
16 adverse credibility determination, see Corovic, 519 F.3d at
17 95, Weng’s claims for asylum, withholding of removal, and
18 CAT relief each fail because the only evidence that she was
19 likely to be persecuted or tortured depended upon her
20 credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
21 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
22 520, 523 (2d Cir. 2005).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 Any pending request for oral argument in this petition is
5 DENIED in accordance with Federal Rule of Appellate
6 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
11 By:___________________________
6