13-2865
    Chen v. Lynch
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A094 797 002
                         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 12th day of April, two thousand sixteen.

    PRESENT:
             RALPH K. WINTER,
             ROSEMARY S. POOLER,
             DENNY CHIN,
                  Circuit Judges.
    _____________________________________

    GUIMO CHEN,
             Petitioner,

                        v.                                 13-2865
                                                           NAC
    LORETTA E.LYNCH1, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Lewis G. Hu, Law Offices of Lewis
                                  Hu, New York, NY.


                    1
             Loretta E. Lynch is automatically substituted as the
        respondent in this case pursuant to Federal Rule of
        Appellate Procedure 43(c)(2).
FOR RESPONDENT:          Stuart F. Delery, Assistant Attorney
                         General; Russell J.E. Verby, Senior
                         Litigation Counsel; John D.
                         Williams, 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 Guimo Chen, a native and citizen of China,

seeks review of a July 16, 2013, order of the BIA, affirming

the October 27, 2011, decision of an Immigration Judge

(“IJ”), which denied asylum, withholding of removal, and

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

Guimo Chen, No. A094 797 002 (B.I.A. July 17, 2013), aff’g

No. A094 797 002 (Immig. Ct. New York City Oct. 27, 2011).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    Under the circumstances of this case, we have

considered both the IJ’s and the BIA’s opinions “for the

sake of completeness.”   Zaman v. Mukasey, 

, 237

(2d Cir. 2008)(citation omitted).    The applicable standards

of review are well established.     See 8 U.S.C. §

                               2
1252(b)(4)(B); Yanqin Weng v. Holder, 

, 513 (2d

Cir. 2009).

    For applications such as Chen’s, which are governed by

the REAL ID Act, the agency may base a credibility finding

on an applicant’s demeanor, the plausibility of his account,

and inconsistencies in his statements, without regard to

whether they go “to the heart of the applicant’s claim.”      8

U.S.C. § 1158(b)(1)(B)(iii).   We “defer 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.” Xiu Xia Lin

v. Mukasey, 

, 167 (2d Cir. 2008).     Here, the

agency reasonably based its adverse credibility

determination on Chen’s inconsistent and implausible

testimony.

    First, the agency reasonably found Chen not credible

based on the inconsistency between his amended asylum

application and testimony that he had been physically

restrained by family planning authorities, and the omission

of that information from his original asylum application.

See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

n.3 (stating that an “inconsistency and an omission are


                               3
. . . functionally equivalent”).   At the hearing and in his

amended application, Chen claimed that he was physically

mistreated by family planning officers after he attempted to

prevent the sterilization of his wife.   His original

application made no such allegation, simply stating instead

that he argued with officials during his wife’s

sterilization procedure.

    The IJ reasonably found implausible Chen’s explanation

that he left the physical mistreatment claim out of his

original application because his attorney did not ask him

about his personal experience, and did not err in relying on

that finding to support the adverse credibility

determination.   See Siewe v. Gonzales, 

, 168-69

(2d Cir. 2007) (finding that while “bald” speculation is an

impermissible basis for an adverse credibility finding,

“[t]he speculation that inheres in inference is not ‘bald’

if the inference is made available to the factfinder by

record facts, or even a single fact, viewed in the light of

common sense and ordinary experience”); Majidi v. Gonzales,

, 80 (2d Cir. 2005) (A petitioner “must do more

than offer a plausible explanation for his inconsistent

statements to secure relief; he must demonstrate that a


                              4
reasonable fact-finder would be compelled to credit his

testimony.”) (emphasis original, internal quotations and

citation omitted).

    Further, the IJ reasonably found the change in Chen’s

story suspect given that it occurred after this Court’s

decision in Shi Liang Lin v. U.S. Dep’t of Justice, 

(2d Cir. 2007), which held that an alien could not

qualify as a refugee based only on the forced sterilization

of his spouse, and must show an individualized well-founded

fear of persecution or demonstrate “other resistance” to a

coercive population control program.   

   Chen’s

argument on appeal that he “had to amend his application”

based on new case law is unavailing, as it remains

implausible that he would have completely omitted

allegations of a beating by family planning officials in his

original application.

    Further, the IJ reasonably found Chen not credible

based on his inconsistent testimony about whether he entered

the operating room during his wife’s sterilization

procedure.   For example, on direct examination, Chen stated

that he entered the operating room and attempted to grab the

doctor’s hand; on cross-examination, he stated that he never

entered the operating room.
                              5
    A totality of the circumstances supports the agency’s

adverse credibility determination based on Chen’s

inconsistent and implausible testimony, and this Court

defers to that finding.   See 8 U.S.C. § 1158(b)(1)(B)(iii);

Xiu Xia 

.       Furthermore, because the only

evidence of a threat to Chen’s life or freedom depended upon

his credibility, the adverse credibility determination in

this case necessarily precludes success on his claims for

asylum, withholding of removal, and CAT relief.       See Paul v.

Gonzales, 

, 156 (2d Cir. 2006); Xue Hong Yang v.

U.S. Dep't of Justice, 

, 523 (2d Cir. 2005).

Because the adverse credibility determination is

dispositive, we need not consider the other arguments Chen

raises.

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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