Wen v. Lynch , 659 F. App'x 686 ( 2016 )

15-3026
Wen v. Lynch
BIA
Sichel, IJ
A089 094 904
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 31st day of August, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
MING ZHAONG WEN, AKA MING DONG
WENG,
Petitioner,
v. 15-3026
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: David A. Bredin, Law Office of David A. Bredin,
Flushing, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant
Attorney General; Brianne Whelan Cohen, Senior
Litigation Counsel; Mona Maria Yousif, Trial
Attorney, Office of Immigration Litigation, United
States Department of Justice, 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 Ming Zhaong Wen, a native and citizen of the People’s Republic of
China, seeks review of a September 3, 2015, decision of the BIA affirming a November 12,
2013, decision of an Immigration Judge (“IJ”). The IJ denied Wen’s application for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Ming Zhaong Wen, No. A089 094 904 (B.I.A. Sept. 3, 2015), aff’g No.
A089 094 904 (Immig. Ct. N.Y. City Nov. 12, 2013). The IJ found that Wen’s application,
which was based on his fear of persecution in China because he is a Christian, was not
credible. We assume the parties’ familiarity with the underlying facts and procedural
history in this case.
The BIA “adopted the conclusions of the IJ and upheld its adverse credibility
finding,” and thus we have “review[ed] the decision of the IJ as supplemented by the BIA.”
Xian Tuan Ye v. DHS, 446 F.3d 289, 293 (2d Cir. 2006). “We review the IJ’s factual
findings, including [its] adverse credibility determinations, under the substantial evidence
standard.” Id. at 294. See also 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
162, 165-66 (2d Cir. 2008). The REAL ID Act governs Wen’s asylum application. Thus,
the agency may, “[c]onsidering the totality of the circumstances . . . base a credibility
determination on” inconsistencies in an “applicant’s or witness’s . . . statements” and other
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record evidence “without regard to whether” those inconsistencies go “to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 n.2. “In
cases like this one, in which the IJ bases [its] denial of asylum on a finding that a
petitioner’s application is not credible, our review is especially limited and highly
deferential.” Ying Li v. Bureau of Citizenship & Immigration Servs., 529 F.3d 79, 81 (2d
Cir. 2008).
Substantial evidence supports the agency’s adverse credibility determination. The IJ
pointed to several inconsistencies in Wen’s testimony and issues with the testimony of Zhi
Jing Chen, a deacon at the church that Wen claims to attend. Chen’s testimony differed
from her own affidavit and from Wen’s testimony. See Xiu Xia Lin, 534 F.3d at 163-64.
Wen testified that he attended church in Brooklyn, but that his wife was not a Christian and
had never attended church with him. This testimony conflicted with Chen’s affidavit,
which stated that Wen sometimes brought his wife to church. The IJ was not required to
accept Wen’s later explanation that he did, in fact, bring his wife to church once and that
Chen may have seen her outside the church on that occasion. That later explanation
conflicted with his prior testimony, as well as with Chen’s testimony that she did not even
know that Wen was married. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005) (“We
hold that an IJ may rely on an inconsistency in an asylum applicant’s account to find that
applicant not credible . . . .”). Moreover, Chen’s initial testimony at the hearing conflicted
with her written statement. The IJ was not required to credit the later testimony, offered
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after a recess, in which Chen altered her testimony and stated that she remembered Wen
bringing his wife to church on Father’s Day. That attempt to harmonize prior testimony did
not adequately explain Chen’s prior statement that she did not even know that Wen was
married.
The IJ reasonably relied on these inconsistencies to find that Wen was not credible,
a finding that affected the entirety of his application. The IJ reasonably concluded that
those inconsistencies reflect an attempt to fabricate Wen’s church attendance in the United
States. Moreover, it was reasonable for the IJ to infer that the post-recess changes in Chen’s
testimony reflect an attempt to harmonize inconsistent evidence rather than relate relevant
facts. The IJ did not err in concluding that this credibility ruling was dispositive. “[A]
single instance of false testimony may . . . infect the balance of the alien’s uncorroborated
or unauthenticated evidence,” justifying the “application of the maxim falsus in uno, falsus
in omnibus [false in one thing, false in everything].” Siewe v. Gonzales, 480 F.3d 160, 170
(2d Cir. 2007).
The IJ also reasonably concluded that Wen’s lack of corroborating evidence further
undermined his credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
(“An applicant’s failure to corroborate his or her testimony may bear on credibility . . . .”).
Wen submitted letters from his wife, father, cousins, a friend, and several churches that he
attended in the United States. He also submitted a receipt for a fine from China, which was
imposed because of his attendance at an illegal underground gathering. Generally, an IJ
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may give limited weight to letters from interested witnesses not subject to
cross-examination. In re H-L-H & Z-Y-Z, 25 I. & N. Dec. 209, 215 (BIA 2010), rev’d on
other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). Wen argues that
his wife and cousin were in court and willing to testify, failing to do so only because the
parties stipulated that the testimony would be consistent with the letters. Thus, Wen argues,
the IJ should not have relied on the inability to cross examine the witnesses in assigning the
letters less evidentiary weight. Given, however, that Wen’s entire testimony had already
been called into question because he showed a willingness to fabricate testimony to avoid
removal, the IJ was entitled to give limited weight to evidence from parties with an interest
in helping Wen remain in the United States. See Siewe, 480 F.3d at 170. Moreover, the IJ
reasonably found limited evidentiary value in the church letters because they were
preprinted forms in which someone had filled out Wen’s name, birthdate, and a date that he
started attending church. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d
Cir. 2006) (discussing the IJ’s discretion to assign limited evidentiary weight to
corroborative documents). Finally, the fine receipt, while evidencing that a fine was paid,
did not resolve the other inconsistencies in Wen’s testimony.
Given the inconsistencies in Wen’s testimony, the lack of corroborating evidence to
support his claims, and the discrepancies in Chen’s statements, the “totality of the
circumstances” supports the IJ’s adverse credibility determination. Xiu Xia Lin, 534 F.3d at
167. The IJ provided “specific, cogent reasons for the adverse credibility finding.” Id. at
5
166. That adverse credibility determination is dispositive of asylum, withholding of
removal, and CAT relief, because all three claims relied on Wen’s credibility. See Paul v.
Gonzales, 444 F.3d 148, 156 (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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