11-1019-ag
Chao Chen v. Holder
                                                                                BIA
                                                                        Schoppert, IJ
                                                                       A094 915 895



                       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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 4th day of April, two thousand twelve.

PRESENT:
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
         REENA RAGGI,
             Circuit Judges.
_______________________________________

CHAO CHEN,
         Petitioner,

                      v.                                11-1019-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                 Farah Loftus, Esq., Century City, CA

FOR RESPONDENT:                 Tony West, Assistant Attorney
                                General; Erica B. Miles, Senior
                       Litigation Counsel; 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.

    Chao Chen, a native and citizen of the People’s

Republic of China, seeks review of a February 23, 2011

decision of the BIA affirming the March 5, 2009 decision of

Immigration Judge (“IJ”) Douglas B. Schoppert, which denied

his application for asylum, withholding of removal, and

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

re Chao Chen, No. A094 915 895 (B.I.A. February 23, 2011),

aff’g No. A094 915 895 (Immig. Ct. N.Y. City Aug. 25, 2008).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    Under the circumstances of this case, we review the

decision of the IJ as supplemented by the BIA’s decision.

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); Yanqin Weng v. Holder, 

, 513 (2d Cir. 2009).


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    For asylum applications governed by the amendments made

to the Immigration and Nationality Act by the REAL ID Act of

2005, an IJ may base a credibility finding on the

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of the applicant’s account, and inconsistencies

in the applicant’s statements, without regard to whether

they go “to the heart of the applicant’s claim.”    8 U.S.C.

§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 

, 167 (2d Cir. 2008).   We will “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 a finding.   Xiu Xia 

.

    In this case, the IJ reasonably found Chen to lack

credibility based on inconsistencies between Chen’s asylum

application and testimony, inconsistencies within Chen’s

testimony, and inconsistencies between Chen’s testimony and

the testimony of his corroborating witness.   Chen indicated

in his asylum application that he was born on April 7, 1987,

then testified that he was born on April 8, 1987.   Chen

stated in his asylum application that he was questioned by

police about his uncle in February 2006, initially testified

that he was questioned in February 2005, and later revised

his testimony to state that he was questioned in February

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2006.   Chen initially testified that he was baptized on

April 8, 2006, but later indicated that he was baptized in

April 2007.     Chen testified that he had last seen his

corroborating witness several weeks before his hearing,

while the witness testified that he had spoken with Chen at

church the day before the hearing.     These were all proper

grounds for an adverse credibility finding.      See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia 

.

    The IJ also properly based his adverse credibility

finding on Chen’s demeanor at the hearing. See 8 U.S.C.

§ 1158(b)(1)(B)(iii).     Specifically, the IJ found that Chen

appeared to be “reciting a story that he had memorized and

not testifying about events that he had actually lived

through.”     Addendum to Pet’s’s Br. at 32.   We generally

defer to such a demeanor finding and do so here.      See Majidi

v. Gonzales, 

, 81 n.1 (2d Cir. 2005).

    The BIA’s decision addressed both the inconsistencies

and Chen’s demeanor.     The BIA also properly concluded that

Chen failed to introduce sufficient corroborating evidence

to rehabilitate his credibility.     See Biao Yang v. Gonzales,

, 273 (2d Cir. 2007).     Given the totality of the

circumstances, including the inconsistencies, Chen’s


                                4
demeanor, and the lack of sufficient corroborating evidence,

we conclude that the agency’s adverse credibility

determination is supported by substantial evidence.      See 8

U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

.

As the only basis for Chen’s withholding of removal and CAT

claims also depended on his credibility, the adverse

credibility determination is also dispositive of those

claims.   See Paul v. Gonzales, 

, 156 (2d Cir.

2006); Xue Hong Yang v. U.S. Dep't of Justice, 

,

523 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot.    Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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