Filed: Nov. 20, 2019
Latest Update: Mar. 03, 2020
Summary: 17-4103 Chen v. Barr BIA Leeds, IJ A206 067 415 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 NOTATIO
Summary: 17-4103 Chen v. Barr BIA Leeds, IJ A206 067 415 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..
More
17-4103
Chen v. Barr
BIA
Leeds, IJ
A206 067 415
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 20th day of November, two thousand nineteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 XUEJIAO CHEN,
14 Petitioner,
15
16 v. 17-4103
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Troy Nader Moslemi, Flushing, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; John S. Hogan,
27 Assistant Director; Rebecca
28 Hoffberg Phillips, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Xuejiao Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a December 5,
7 2017, decision of the BIA affirming a March 6, 2017, decision
8 of an Immigration Judge (“IJ”) denying her application for
9 asylum, withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Xuejiao Chen, No.
11 A206 067 415 (B.I.A. Dec. 5, 2017), aff’g No. A206 067 415
12 (Immig. Ct. N.Y. City Mar. 6, 2017). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Chen raises only withholding of removal and CAT relief
16 in this Court. We have reviewed both the IJ’s and BIA’s
17 decisions denying relief on credibility grounds. See
18 Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The
19 applicable standards of review are well established. See
20 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions,
891 F.3d
21 67, 76 (2d Cir. 2018).
22 “Considering the totality of the circumstances, and all
2
1 relevant factors, a trier of fact may base a credibility
2 determination on the demeanor, candor, or responsiveness of
3 the applicant or witness, . . . the consistency between the
4 applicant’s or witness’s written and oral statements . . . ,
5 [and] the internal consistency of each such statement . . .
6 without regard to whether an inconsistency, inaccuracy, or
7 falsehood goes to the heart of the applicant’s claim . . . .”
8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
9 F.3d 162, 163-64 (2d Cir. 2008). Substantial evidence
10 supports the agency’s determination that Chen was not
11 credible as to her claim that police detained and beat her on
12 account of her Falun Gong practice and that she continues to
13 practice Falun Gong in the United States.
14 The agency reasonably relied in part on Chen’s demeanor,
15 noting that her testimony was evasive. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); Majidi v. Gonzales,
430 F.3d 77, 81 n.1
17 (2d Cir. 2005) (recognizing that particular deference is
18 given to the trier of fact’s assessment of demeanor). The
19 demeanor finding is supported by the record, which reflects
20 that Chen repeatedly avoided answering questions the answers
21 to which would have been detrimental to her application.
22 The demeanor finding and overall credibility
3
1 determination are bolstered by record inconsistencies. See
2 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
3 Cir. 2006). Chen testified inconsistently and ultimately
4 admitted lying about her state of residence in the United
5 States. Further, Chen and her witnesses testified
6 inconsistently about Chen’s practice of Falun Gong. These
7 inconsistencies were not compellingly explained. See
8
Majidi, 430 F.3d at 80.
9 Having questioned Chen’s credibility, the agency
10 reasonably relied further on her failure to submit reliable
11 corroborating evidence. “An applicant’s failure to
12 corroborate his or her testimony may bear on credibility,
13 because the absence of corroboration in general makes an
14 applicant unable to rehabilitate testimony that has already
15 been called into question.” Biao Yang v. Gonzales, 496
16 F.3d 268, 273 (2d Cir. 2007). Chen did not corroborate
17 medical treatment she received in China for either the
18 chronic health issues that purportedly prompted her to
19 practice Falun Gong or for the harm she claimed to have
20 suffered in detention. Nor did she submit evidence that
21 her parents had paid a fine to secure her release from
22 detention. As to the documentation she did produce, the
4
1 agency reasonably declined to credit statements from Chen’s
2 husband and his aunt on account of their inconsistent
3 testimony, and did not err in declining to credit
4 statements from Chen’s parents and friend in China. See
5 8 U.S.C. § 1158(b)(1)(B)(iii); see also Y.C. v. Holder, 741
6 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s
7 decision to afford little weight to relative’s letter from
8 China because it was unsworn and from an interested
9 witness); Siewe v. Gonzales,
480 F.3d 160, 170 (2d Cir.
10 2007) (“An IJ may, either expressly or impliedly, rely on
11 falsus in uno to discredit evidence that does not benefit
12 from corroboration or authentication independent of the
13 petitioner’s own credibility.”). Further, Chen admitted
14 that the photographs of her Falun Gong practice were taken
15 solely for the purpose of her application rather than
16 spontaneously during her activities as a Falun Gong
17 practitioner.
18 Given Chen’s evasive demeanor, inconsistent evidence,
19 and lack of reliable corroboration, the agency’s adverse
20 credibility determination is supported by substantial
21 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). That
22 determination is dispositive of withholding of removal and
5
1 CAT relief because both claims are based on the same
2 factual predicate. See Paul v. Gonzales, 444 F.3d 148,
3 156-57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe
14 Clerk of Court
15
6
