Filed: Dec. 21, 2009
Latest Update: Mar. 02, 2020
Summary: 09-0236-ag Chen v. Holder BIA Lamb, IJ A079 399 694 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE
Summary: 09-0236-ag Chen v. Holder BIA Lamb, IJ A079 399 694 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE ..
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09-0236-ag
Chen v. Holder
BIA
Lamb, IJ
A079 399 694
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of December, two thousand nine.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _________________________________________
12
13 QUAN LUO CHEN, a.k.a. CHUAN LUO CHEN,
14 Petitioner,
15
16 v. 09-0236-ag
17 NAC
18 ERIC H. HOLDER, JR., 1 UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Acting Attorney General
Mark R. Filip as respondent in this case.
1 FOR PETITIONER: Feng Li, Law Office of Fengling Liu
2 New York, New York.
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General, Civil Division; Linda S.
6 Wernery, Assistant Director; Lindsay
7 B. Glauner, Trial Attorney, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Quan Luo Chen, a native and citizen of the People’s
16 Republic of China, seeks review of a December 19, 2008 order
17 of the BIA, affirming the April 24, 2007 decision of
18 Immigration Judge (“IJ”) Elizabeth A. Lamb, who denied
19 Chen’s application for asylum, withholding of removal, and
20 relief under the Convention Against Torture (“CAT”). In re
21 Quan Luo Chen, No. A079 399 694 (B.I.A. Dec. 19, 2008),
22 aff’g No. A079 399 694 (Immig. Ct. N.Y. City Apr. 24, 2007).
23 We assume the parties’ familiarity with the underlying facts
24 and procedural history in this case.
25 We review the IJ’s decision as supplemented by the BIA.
26 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
27 The applicable standards of review are well established.
2
1 See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122,
2 126-27 (2d Cir. 2007); Salimatou Bah v. Mukasey,
529 F.3d
3 99, 110-11 (2d Cir. 2008).
4 Here, substantial evidence supports the IJ’s adverse
5 credibility determination, which was based on: (1) Chen’s
6 inconsistent testimony as to whether he had proof of his
7 wife’s abortion; (2) Chen’s evasive demeanor; (3) a response
8 from Chinese officials stating that Chen’s wife’s abortion
9 certificate is fraudulent; and (4) Chen’s failure to submit
10 any evidence rebutting that response. Because Chen does not
11 challenge the IJ’s reliance upon his demeanor and his
12 failure to provide rebuttal evidence, those findings stand
13 as valid bases for the IJ’s adverse credibility
14 determination. See Shunfu Li v. Mukasey,
529 F.3d 141, 146-
15 47 (2d Cir. 2008). Although Chen asserts that his being
16 upset and nervous explained his inconsistent testimony, no
17 reasonable factfinder would have been compelled to credit
18 that explanation. See Majidi v. Gonzales,
430 F.3d 77, 81
19 (2d Cir. 2005); see also Yun-Zui Guan v. Gonzales,
432 F.3d
20 391, 397 n.6, 399 n.8 (2d Cir. 2005). Finally, we have
21 found that a response from the alleged persecuting
22 government “may be of limited probative value” because the
3
1 government may have “ulterior motive[s].” See Zhen Nan Lin
2 v. Dep’t of Justice, 459 F.3d 255, 266 (2d Cir. 2006).
3 However, given the other discrepancies in the record, the IJ
4 was entitled to give weight to the Chinese government’s
5 statement that the abortion certificate is fraudulent,
6 particularly because Chen failed to provide rebuttal
7 evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
8 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
9 afforded to the applicant’s evidence in immigration
10 proceedings lies largely within the discretion of the
11 agency).
12 Because substantial evidence supports the IJ’s adverse
13 credibility determination, see Dong
Gao, 482 F.3d at 126,
14 Chen’s claims for asylum, withholding of removal, and CAT
15 relief each fail because the only evidence that he was
16 likely to be persecuted or tortured depended upon his
17 credibility. 2 See Paul v. Gonzales,
444 F.3d 148, 156 (2d
18 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d
19 520, 523 (2d Cir. 2005).
2
We reject the government’s argument that Chen waived
any challenge to the agency’s denial of CAT relief. In his
brief, Chen notes that the IJ denied CAT relief based on her
adverse credibility determination, and challenged that
determination.
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the temporary stay
3 of removal that the Court previously granted in this
4 petition is VACATED. To the extent petitioner requests a
5 further stay, that request is denied as moot.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
10 By:___________________________
5
