Filed: Dec. 15, 2015
Latest Update: Mar. 02, 2020
Summary: 14-4333 Chen v. Lynch BIA Poczter, IJ A205 337 091 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 NOTA
Summary: 14-4333 Chen v. Lynch BIA Poczter, IJ A205 337 091 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 NOTAT..
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14-4333
Chen v. Lynch
BIA
Poczter, IJ
A205 337 091
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
15th day of December, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
MEI CHEN,
Petitioner,
v. 14-4333
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jan Potempkin, New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Eric W.
Marsteller, Senior Litigation
Counsel; Joseph D. Hardy, 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 Mei Chen, a native and citizen of China, seeks
review of an October 29, 2014, decision of the BIA affirming
a June 11, 2013, decision of an Immigration Judge (“IJ”) denying
Chen’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re Mei
Chen, No. A205 337 091 (B.I.A. Oct. 29, 2014), aff’g No. A205
337 091 (Immig. Ct. N.Y. City June 11, 2013). 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. See Mei Chai Ye v. U.S. Dep’t of Justice, 489
F.3d 517, 523 (2d Cir. 2007). The applicable standards of
review are well established. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
For asylum applications such as Chen’s, governed by the
REAL ID Act of 2005, the agency may, “considering the totality
of the circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of her account, and inconsistencies in her
statements and evidence, without regard to whether they go “to
the heart of the applicant’s claim,” so long as they reasonably
support an inference that the applicant is not credible. 8
U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008) (per curiam). An omission in an
applicant’s testimony or supporting documents is “functionally
equivalent” to an inconsistency and “can serve as a proper basis
for an adverse credibility determination.” Xiu Xia
Lin, 534
F.3d at 166 n.3. “We defer therefore to an IJ’s credibility
determination unless, from the totality of the circumstances,
it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.”
Id. at 167.
Chen applied for asylum based on a claim that she was
subject to a forced abortion. The agency found that Chen was
not credible because she did not mention this abortion during
her credible fear interview, despite maintaining that she was
3
forced to use an intrauterine device (“IUD”) and threatened with
sterilization, and she was inconsistent regarding when she was
forced to use an IUD. This omission and inconsistency
constitute substantial evidence supporting the agency’s
adverse credibility determination.
During her credible fear interview, Chen stated that
authorities in China “wanted to catch [her] so they could insert
an IUD and sterilize [her].” She did not reference any
abortion. Further, she explained that authorities asked her
in December 2009 to have an IUD inserted. In her asylum
application, however, Chen stated that she was required to use
an IUD beginning in August 1995, had it removed in January 2011,
and was forced to terminate a pregnancy in October 2011. When
asked about these discrepancies, Chen explained that she was
“very nervous” during the credible fear interview. Given the
central importance of this omission in her testimony at the
credible fear interview, the IJ did not err in declining to
credit her explanation for the omission. Under the
circumstances, nothing in her explanation would compel a
reasonable fact-finder to do so. See Majidi v. Gonzales, 430
F.3d 77, 80-81 (2d Cir. 2005). These inconsistencies regarding
4
the main incident of past harm, the abortion, and the related
discrepancies regarding the IUD are sufficient grounds for an
adverse credibility determination. See Xian Tuan Ye v. Dep’t
of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (per curiam).
Furthermore, the agency did not err in relying on the
credible fear interview to find Chen not credible. The record
bears sufficient indicia of the interview’s reliability: it
provides a verbatim account of Chen’s statements, including her
answers to questions regarding why she feared returning to
China; the questions regarding her fear of return were clearly
designed to elicit the details of an asylum claim; and there
is no indication that Chen was not forthcoming given her
statements about an IUD and threatened sterilization. See Ming
Zhang v. Holder, 585 F.3d 715, 723-25 (2d Cir. 2009);
Ramsameachire v. Ashcroft,
357 F.3d 169, 179-80 (2d Cir. 2004)
(discussing indicia of reliability in border interviews).
Finally, the agency reasonably gave limited weight to the
documentary evidence. The unsworn letters from Chen’s husband
and friend were from interested authors not subject to cross
examination. See Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209,
215 (B.I.A. 2010), overruled on other grounds by Hui Lin Huang
5
v. Holder, 677 F.3d 130, 137-38 (2d Cir. 2012); see also Xiao
Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir.
2006) (noting that the weight afforded to evidence lies largely
within the discretion of the agency).
The agency also reasonably gave limited weight to the
abortion certificate Chen provided. Although the agency may
not reject an official record solely because it is not
authenticated pursuant to regulation, see Cao He Lin v.
Gonzales, 428 F.3d 391, 404–05 (2d Cir. 2005), Chen did not
demonstrate the authenticity of the certificate through any
other alternative objective means and gave no explanation as
to when she received the certificate or who gave it to her.
Here, Chen argues that authentication is not necessary because
the certificate is a medical record, not an official government
record. Chen’s asylum claim is, however, based on the
proposition that government officials forced her to terminate
her pregnancy: a medical record stating that Chen had an
abortion, without addressing whether the abortion was voluntary
or involuntary, does not rehabilitate her otherwise incredible
testimony. See Xiao Xing Ni v. Gonzales,
494 F.3d 260, 263 (2d
Cir. 2007).
6
The inconsistencies in the record go to the heart of Chen’s
claim and provide substantial evidence for the agency’s
credibility finding. Because the only evidence of a threat to
Chen’s life or freedom depended upon her credibility, the
agency’s finding that she was not credible necessarily
precludes success on her claims for asylum, withholding of
removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148, 156-57
(2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
7
