Filed: Apr. 11, 2018
Latest Update: Mar. 03, 2020
Summary: 16-1569 Chen v. Sessions BIA Christensen, IJ A205 469 055 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 T
Summary: 16-1569 Chen v. Sessions BIA Christensen, IJ A205 469 055 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 TH..
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16-1569
Chen v. Sessions
BIA
Christensen, IJ
A205 469 055
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 11th day of April, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO HUI CHEN,
14 Petitioner,
15
16 v. 16-1569
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Jonathan A.
27 Robbins, Senior Litigation Counsel;
28 Joanna L. Watson, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 is
4 DENIED.
5 Petitioner Xiao Hui Chen, a native and citizen of the
6 People’s Republic of China, seeks review of an April 20, 2016,
7 decision of the BIA, affirming a November 14, 2014, decision
8 of an Immigration Judge (“IJ”) denying Chen’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Xiao Hui Chen, No. A205 469 055
11 (B.I.A. Apr. 20, 2016), aff’g No. A205 469 055 (Immig. Ct. N.Y.
12 City Nov. 14, 2014). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and the BIA’s decisions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). We review the agency’s adverse credibility
18 determination for substantial evidence. See 8 U.S.C.
19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66
20 (2d Cir. 2008).
21 For asylum applications like Chen’s, governed by the REAL
22 ID Act, the agency may, “[c]onsidering the totality of the
23 circumstances,” base a credibility finding on an applicant’s
2
1 “demeanor, candor, or responsiveness,” and on inconsistencies
2 in an applicant’s statements and evidence. 8 U.S.C.
3 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
4 Contrary to Chen’s position in his brief, under the REAL ID Act,
5 inconsistencies may support an adverse credibility
6 determination “without regard to whether” they “go[] to the
7 heart of the applicant’s claim.” 8 U.S.C.
8 § 1158(b)(1)((B)(iii). “We defer . . . to an IJ’s credibility
9 determination unless, from the totality of the circumstances,
10 it is plain that no reasonable fact-finder could make such an
11 adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
12 Substantial evidence supports the adverse credibility
13 determination.
14 The crux of Chen’s claim is that he was persecuted and fears
15 persecution in China because he attended an underground church.
16 The agency reasonably relied on inconsistencies between Chen’s
17 testimony, application, and evidence. See 8 U.S.C.
18 § 1158(b)(1)(B)(iii). The inconsistencies are reflected in
19 the record and provide substantial support for the adverse
20 credibility determination as they concern Chen’s practice of
21 Christianity in China and the United States. See Xian Tuan Ye
22 v. Dep’t of Homeland Sec.,
446 F.3d 289, 295 (2d Cir. 2006)
23 (concluding that “a material inconsistency” relating to “the
3
1 very persecution from which [the applicant] sought
2 asylum, . . . afforded substantial evidence to support the
3 adverse credibility finding.” (internal quotation marks and
4 citation omitted)). For example, Chen’s testimony,
5 application, and evidence were inconsistent regarding when Chen
6 began attending an underground church and whether he ever
7 attended a government church. Chen testified, moreover, that
8 he required medical attention following his detention, but
9 neither his application nor his mother’s letter included that
10 important fact. See Xiu Xia Lin, 534 F.3d at 166 n.3 (“An
11 inconsistency and an omission are . . . functionally
12 equivalent.”). Given that these omissions or inconsistencies
13 go directly to the events leading up to and immediately
14 following the sole incident of alleged persecution, the agency
15 was not required to put Chen on notice of their relevance or
16 offer him more of an opportunity to explain. See Ming Shi Xue
17 v. BIA,
439 F.3d 111, 122 n.13, 125 (2d Cir. 2006) (concluding
18 that where the “inconsistency is ‘dramatic’ or obvious on its
19 face . . . the petitioner can be assumed to be aware—without
20 being told—of the need to explain it”).
21 The adverse credibility determination is bolstered by the
22 agency’s demeanor finding. We defer to that finding,
23 particularly given the evidence of Chen’s pauses and difficulty
4
1 answering questions and providing explanations for
2 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 81 n.1
3 (2d Cir. 2005).
4 Nor do we discern error in the agency’s decision to give
5 limited weight to Chen’s corroborating evidence. See Y.C. v.
6 Holder,
741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the
7 agency’s determination of the weight afforded to an alien’s
8 documentary evidence.”). Chen’s letters from China were
9 authored by individuals not subject to cross examination, and
10 a church letter from the United States was inconsistent with
11 Chen’s testimony.
Id. (upholding agency’s decision to give
12 little weight to letter from family member in China).
13 Given the multiple inconsistencies, the demeanor finding,
14 and the lack of reliable corroboration, the totality of the
15 circumstances supports the adverse credibility determination.
16 Xiu Xia
Lin, 534 F.3d at 167. That determination is dispositive
17 of asylum, withholding of removal, and CAT relief because all
18 three forms of relief are based on the same factual predicate.
19 Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
23
5
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6
