Filed: Apr. 26, 2010
Latest Update: Feb. 21, 2020
Summary: 08-0045-ag Chen v. Holder BIA Ferris, IJ A073 488 658 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 N
Summary: 08-0045-ag Chen v. Holder BIA Ferris, IJ A073 488 658 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 NO..
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08-0045-ag
Chen v. Holder
BIA
Ferris, IJ
A073 488 658
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.
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 26 th day of April, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 HONG YUE CHEN,
15 Petitioner,
16
17 v. 08-0045-ag
18 NAC
19 ERIC H. HOLDER, JR., * UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Peter D. Lobel, New York, New York.
2
3 FOR RESPONDENT: Gregory G. Katsas, Acting Assistant
4 Attorney General; Linda S. Wernery,
5 Assistant Director; Gregory M.
6 Kelch, Attorney, Office of
7 Immigration Litigation, 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 Hong Yue Chen, a native and citizen of the People’s
16 Republic of China, seeks review of a December 7, 2007 order
17 of the BIA affirming the December 8, 2005 decision of
18 Immigration Judge (“IJ”) Noel Ferris, which denied her
19 application for asylum, withholding of removal, and relief
20 under the Convention Against Torture (“CAT”). In re Hong
21 Yue Chen, No. A073 488 658 (B.I.A. Dec. 7, 2007), aff’g No.
22 A073 488 658 (Immig. Ct. N.Y. City Dec. 8, 2005). We
23 assume the parties’ familiarity with the underlying facts
24 and procedural history in this case.
25 Under the circumstances of this case, we review the
26 IJ’s decision as supplemented by the BIA’s decision. See
27 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
2
1 The applicable standards of review are well-established.
2 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
3 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
4 I. Past Persecution: Adverse Credibility
5 We find no error in the agency’s adverse credibility
6 determination. See Secaida-Rosales v. INS,
331 F.3d 297,
7 307 (2d Cir. 2003) (finding that a n adverse credibility
8 determination must be based on “specific, cogent reasons”
9 that “bear a legitimate nexus” to the finding).
10 The IJ reasonably relied on inconsistencies between [i]
11 Chen’s testimony and [ii] the record of her airport
12 interview in which she stated she was not married, had no
13 children, and never mentioned suffering a forced abortion.
14 Notwithstanding Chen’s argument, the record of the airport
15 interview is reliable. See Ramsameachire v. Ashcroft, 357
16 F.3d 169, 179 (2d Cir. 2004).
17 We defer to the IJ’s determination that Chen’s overall
18 demeanor and her unresponsiveness undermined her
19 credibility. See Shu Wen Sun v. Board of Immigration
20 Appeals,
510 F.3d 377, 380-81 (2d Cir. 2007); Majidi v.
21 Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005). To the extent
22 that Chen offered explanations for these discrepancies, the
3
1 IJ was not compelled to credit them. See Majidi, 430 F.3d
2 at 80-81.
3 We need not consider the additional credibility
4 findings because the findings discussed above were adequate
5 support for the adverse credibility finding. See Xian Tuan
6 Ye v. DHS,
446 F.3d 289, 294 (2d Cir. 2006). Because Chen’s
7 applications for withholding of removal and CAT relief were
8 based on the same factual predicate as her asylum claim,
9 those claims necessarily fail. See Paul v. Gonzales, 444
10 F.3d 148, 154 (2d Cir. 2006) ; Gomez v. INS,
947 F.2d 660,
11 665 (2d Cir. 1991).
12 II. Well-Founded Fear: Burden of Proof
13 Substantial evidence supports the agency’s finding that
14 Chen failed to demonstrate a well-founded fear that she
15 would be sterilized in China based on the birth of her three
16 children (two of whom are U.S. citizens). This argument is
17 largely foreclosed by our decision in Jian Hui Shao v.
18 Mukasey,
546 F.3d 138 (2d Cir. 2008) . Chen argues that the
19 agency failed to consider adequately the evidence she
20 presented; but we “presume that [the agency] has taken into
21 account all of the evidence before [it], unless the record
22 compellingly suggests otherwise.” Xiao Ji Chen v. US Dep’t.
4
1 Of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) Chen
2 advances no argument that would compel the conclusion that
3 the IJ ignored any of the evidence she submitted.
4 Chen’s argument concerning the Aird Affidavit is
5 unexhausted. See Foster v. INS,
376 F.3d 75, 78 (2d Cir.
6 2004); see also Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d
7 104, 119-20 (2d Cir. 2007). In any event, the BIA and this
8 Court have considered similar versions of the Aird
9 Affidavit, time and again finding it “inadequate to
10 establish the existence of an official policy of forced
11 sterilization . . . and thus insufficient to show that the
12 applicants were likely to face forced sterilization if
13 returned to China.” See Jin Xiu Chen v. U.S. Dep’t of
14 Justice,
468 F.3d 109, 110 (2d Cir. 2006).
15 III. Due Process
16 Chen argues that the IJ’s conduct was prejudicial and
17 denied her a fair hearing. However, Chen does not
18 demonstrate that the IJ’s conduct here in any way denied her
19 a full and fair opportunity to present her claims. See Li
20 Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 104-05 (2d
21 Cir. 2006); cf. Islam v. Gonzales,
469 F.3d 53, 55-56 (2d
22 Cir. 2006).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
6
