12-3362
    Chen v. Holder
                                                                                  BIA
                                                                          A087 637 120

                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
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         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 20th day of August, two thousand thirteen.

    PRESENT:

             JOSÉ A. CABRANES,
             GERARD E. LYNCH,
             CHRISTOPHER F. DRONEY,
                      Circuit Judges.
    _______________________________________

    QUN CHEN,
                     Petitioner,

                     v.                                    12-3362
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:                 Robert Valane, Moslemi & Associates,
                                    New York, New York.

    FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
                                    Attorney General; Emily Anne
                                    Radford, Assistant Director; Jesse
                       D. Lorenz, 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 Qun Chen, a native and citizen of the

People’s Republic of China, seeks review of a July 25, 2012,

decision of the BIA affirming the May 17, 2011, decision of

Immigration Judge (“IJ”) Brigitte Laforest, which denied her

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).    In re Qun

Chen, No. A087 637 120 (B.I.A. Jul. 25, 2012), aff’g No.

A087 637 120 (Immig. Ct. N.Y. City May 17, 2011).      We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA.    See Yan Chen

v. Gonzales, 

, 271 (2d Cir. 2005).   The

applicable standards of review are well-established.      See

8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

, 513 (2d Cir. 2009).   For applications such as


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Chen’s that are governed by the amendments made to the

Immigration and Nationality Act by the REAL ID Act of 2005,

the agency may, “[c]onsidering the totality of the

circumstances, . . .   base a credibility determination on

the demeanor, candor, or responsiveness of the applicant or

witness, the inherent plausibility of [his or her] account,”

and inconsistencies in his or her statements, “without

regard to whether . . . [they go] to the heart of the

applicant’s claim.”    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

Xia Lin v. Mukasey, 

, 167 (2d Cir. 2008) (per

curiam).

    In making the adverse credibility finding, the IJ

reasonably relied on Chen’s inconsistent testimony, and

inconsistencies between her testimony and the letters from

her mother and boyfriend.    See Xiu Xia 

.

During the merits hearing, Chen changed her testimony

regarding the location where she was taken for the forced

abortion, the date she was planning to get married, and when

she lived with her boyfriend.       She also testified that she

was living with her mother when she discovered she was

pregnant, contradicting the statement in her asylum

application that she was living with her boyfriend at that


                                3
time.   When questioned about her inconsistencies, Chen

changed her testimony.    Although her explanations may be

plausible, the record does not compel the conclusion that

the IJ should have credited them.    See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Majidi v. Gonzales, 

, 80

(2d Cir. 2005).   In addition, because the inconsistencies

regarding where she was taken for an abortion and where she

was living when she discovered she was pregnant were

dramatic and central to her claim, the IJ was not required

to request explanation.    See 

.

    The IJ also reasonably relied on the lack of

corroboration in finding Chen not credible.    See Biao Yang

v. Gonzales, 

, 273 (2d Cir. 2007).      The IJ

observed the absence of any medical records from the

hospital or an abortion certificate, and reasonably declined

to credit as corroborating evidence the letters from her

mother and boyfriend that Chen submitted on this issue,

which were unauthenticated, came from interested parties who

were not available for cross-examination, and, in the case

of her mother’s letter that provided a date for the

abortion, differed from Chen’s testimony and asylum

application.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471


                               

, 342 (2d Cir. 2006) (holding that “the weight to

afford to such evidence lies largely within the discretion

of the IJ” (internal quotation and alteration omitted)).

Contrary to Chen’s argument, the IJ was not required to

determine that the medical records or an abortion

certificate were reasonably available.   

that an IJ’s explanation for why documents are reasonably

available applies when lack of corroboration is cited as

basis for finding “otherwise credible” testimony

insufficient to satisfy burden (emphasis in original)).     The

adverse credibility determination is further bolstered by

the IJ’s demeanor finding, to which we defer.   See Jin Chen

v. U.S. Dep’t of Justice, 

, 113 (2d Cir. 2005).

    Accordingly, given the inconsistency and demeanor

findings, the totality of the circumstances supports the

agency’s adverse credibility determination, 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia 

, which is

also dispositive of her requests for withholding of removal

and CAT relief, see Paul v. Gonzales, 

, 156 (2d

Cir. 2006).

    Finally, to the extent that Chen argues that the IJ

should have made a determination of her competence, this

issue is unexhausted as it was not raised before the BIA.
                             5
See Lin Zhong v. U.S. Dep’t of Justice, 

, 122

(2d Cir. 2007).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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