Weng v. Gonzales, (2nd Cir. 2007)

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06-0243-ag

Weng v. Gonzales BIA

Sichel, IJ

A 72 565 041

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

F I L E D AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

A N D FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

L I T I G A N T CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

O N E CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

( S U M M A R Y ORDER). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

T O G E T H E R WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

B Y COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

P U B L I C L Y ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

H T T P : / / W W W . C A 2 . U S C O U R T S . G O V /

O R D E R ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE D O C K E T NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of N e w York, on the 31st day of August, two thousand seven. PRESENT: H O N . GUIDO CALABRESI, H O N . BARRINGTON D. PARKER, H O N . RICHARD C. WESLEY, C i r c u i t Judges. B A O DE WENG, Petitioner, v. 06-0243-ag NAC A L B E R T O GONZALES, Respondent. F O R PETITIONER: R o b e r t J. Adinolfi, New York, New York. F O R RESPONDENT: J a n e W. Duke, Acting United States 1 A t t o r n e y ; Gwendolyn D. Hodge, 2 A s s i s t a n t United States Attorney, 3 L i t t l e Rock, Arkansas.

4 5 6 U P O N DUE CONSIDERATION of this petition for review of a 7 B o a r d of Immigration Appeals ("BIA") decision, it is hereby 8 O R D E R E D , ADJUDGED, AND DECREED that the petition for review is 9 DENIED.

Petitioner Bao De Weng, a native and citizen of the P e o p l e ' s Republic of China, seeks review of a December 20, 2 0 0 5 order of the BIA affirming the August 19, 2004 decision of Immigration Judge ("IJ") Helen J. Sichel denying his a p p l i c a t i o n s for asylum, withholding of removal, and relief u n d e r the Convention Against Torture ("CAT"). In re Bao De W e n g , No. A 72 565 041 (B.I.A. Dec. 20, 2005), aff'g No. A 72 5 6 5 041 (Immig. Ct. N.Y. City, Aug. 19, 2004). We assume the p a r t i e s ' familiarity with the underlying facts and procedural h i s t o r y in this case.

W h e n the BIA issues an opinion that fully adopts the IJ's d e c i s i o n , this Court reviews the IJ's decision. See, e.g., C h u n Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005). This C o u r t reviews the agency's factual findings, including adverse c r e d i b i l i t y determinations, under the substantial evidence s t a n d a r d , treating them as "conclusive unless any reasonable a d j u d i c a t o r would be compelled to conclude to the contrary." 8U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 3 8 6 F.3d 66, 73 & n.7 (2d Cir. 2004). However, we will vacate a n d remand for new findings if the agency's reasoning or its f a c t - f i n d i n g process was sufficiently flawed. Cao He Lin v. U . S . Dep't of Justice, 428 F.3d 391, 406 (2d Cir. 2005).

While this Court has held that an IJ must make an " e x p l i c i t " determination as to credibility, Diallo v. INS, 232 F . 3 d 279, 290 (2d Cir. 2000), we have never held that to do so a n y particular words are required. Here, the IJ did not use t h e word "credible" in her decision. However, each of her findings ­ including those regarding omissions and inconsistencies ­ was relevant to an adverse credibility determination. Moreover, both parties treat the IJ's decision a s having rendered an adverse credibility finding. As such, w e construe the IJ's decision as having disposed of Weng's c l a i m on credibility grounds.

C o n s t r u e d as such, substantial evidence supports the IJ's a d v e r s e credibility determination. First, the IJ accurately f o u n d Weng's testimony that his wife had a forced abortion in 1 9 8 3 to be inconsistent with the statement from his wife's physician, which indicated that his wife had the alleged a b o r t i o n in 1986. Additionally, the IJ noted that Weng had o r i g i n a l l y premised his asylum claim on his involvement in the p r o - d e m o c r a c y movement in China, but then pursued only a claim based on the family planning policy. The IJ reasonably d e c l i n e d to credit Weng's explanation for these discrepancies ­ that someone else had prepared his asylum application and t h a t he did not speak English. See Majidi v. Gonzales, 430 F . 3 d 77, 80-81 (2d Cir. 2005) (emphasizing that the agency n e e d not credit an applicant's explanations for inconsistent t e s t i m o n y unless those explanations would compel a reasonable f a c t - f i n d e r to do so). Because these inconsistencies were m a t e r i a l to Weng's claim that his wife had a forced abortion, t h e y substantiated the IJ's adverse credibility finding. See S e c a i d a - R o s a l e s , 331 F.3d at 308. In addition, the IJ p r o p e r l y based his adverse credibility finding on the omission o f the alleged forced abortion from the asylum applications f i l e d by Weng and his wife, and from his airport interview.

W e n g alleged in his asylum application that he was persecuted by the Chinese government because he opposed the family p l a n n i n g policy, but he asserted only that he did so "by t r y i n g to have a female child." Further, he stated in his a i r p o r t interview upon his arrival in the United States that h e came to this country, in part, because he wanted to have a b a b y with his wife "in the future." Thus, although Weng's w i f e ' s forced abortion may not have been a basis for an asylum c l a i m at the time, it nevertheless was material to his claim that he was persecuted under the family planning policy.

These omissions therefore supported the IJ's adverse c r e d i b i l i t y determination. See Cheng Tong Wang v. Gonzales, 4 4 9 F.3d 451, 453 (2d Cir. 2006).

Because the only evidence of a threat to Weng's life or f r e e d o m depended upon his credibility, the adverse credibility d e t e r m i n a t i o n in this case necessarily precludes success on h i s claim for withholding of removal. See Paul v. Gonzales, 4 4 4 F.3d 148, 156 (2d Cir. 2006).

W e separately note that, even assuming credibility, Weng i s not eligible for asylum solely on the basis of his wife's a l l e g e d forced abortion. See Shi Liang Lin v. U.S. Dep't of J u s t i c e , --- F.3d ---, 2007 WL 2032066, *10 (2d Cir. July 16, 2 0 0 7 ) (holding that the Immigration and Nationality act does n o t provide that a spouse or unmarried partner of someone who h a s been forced to undergo, or is threatened with, an abortion or sterilization is automatically eligible for "refugee" status).

F i n a l l y , we deny Weng's request for remand in light of the documents that were the subject of Shou Yung Guo v. G o n z a l e s , 463 F.3d 109 (2d Cir. 2006) and Tian Ming Lin v. U . S . Dep't of Justice, 473 F.3d 48 (2d Cir. 2007), where the I J ' s proper adverse credibility finding calls the existence of W e n g ' s two children into question. See Kaur v. BIA, 413 F.3d 2 3 2 , 234 (2d Cir. 2005) (finding that the BIA did not abuse i t s discretion in denying petitioner's motion to reopen due, i n part, to his failure to rebut the adverse credibility d e t e r m i n a t i o n that provided the basis for the IJ's denial of his underlying asylum claim). Even if Weng credibly e s t a b l i s h e d that he has two children, remand would not be required, given our recent decision in Xiao Xing Ni v. G o n z a l e s , No. 04-0042-ag, 2007 WL 2012395 (2d Cir. July 12, 2 0 0 7 ) , because the documents described in Shou Yung Guo are not in the record before us. If Weng has evidence e s t a b l i s h i n g his eligibility for relief based on the existence o f his two children, he may present such evidence to the BIA i n a motion to reopen. See id.; see also 8 C.F.R. § 1 0 0 3 . 2 ( a ) , (c).

F o r the foregoing reasons, the petition for review is DENIED. Having completed our review, any stay of removal that t h e Court previously granted in this petition is VACATED, and a n y pending motion for a stay of removal in this petition is D I S M I S S E D as moot. Any pending request for oral argument in t h i s petition is DENIED in accordance with Federal Rule of A p p e l l a t e Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).

F o r the Court: C a t h e r i n e O'Hagan Wolfe, Clerk B y :

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