Filed: Apr. 24, 2012
Latest Update: Mar. 26, 2017
Summary: 10-5009-ag Chen v. Holder BIA Chew, IJ A078 691 807 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 NOT
Summary: 10-5009-ag Chen v. Holder BIA Chew, IJ A078 691 807 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 NOTA..
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10-5009-ag
Chen v. Holder
BIA
Chew, IJ
A078 691 807
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
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 24 th day of April, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 Hong Chen,
14 Petitioner,
15
16 v. 10-5009-ag
17 NAC
18 Eric H. Holder, Jr., Attorney
19 General of the United States,
20 Immigration & Naturalization
21 Service,
22 Respondents.
23 _____________________________________
24
25 FOR PETITIONER: Hong Chen, pro se, New York, New
26 York.
27
28 FOR RESPONDENTS: Tony West, Assistant Attorney
29 General; Greg D. Mack, Senior
30 Litigation Counsel; Colin J. Tucker,
31 Trial Attorney, Office of
32 Immigration Litigation, United
33 States Department of Justice,
34 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DISMISSED in part and DENIED in part.
5 Hong Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a November 23, 2010,
7 decision of the BIA affirming the November 13, 2008,
8 decision of immigration judge (“IJ”) George T. Chew, which
9 pretermitted his application for asylum and denied his
10 applications for withholding of removal and relief under the
11 Convention Against Torture (“CAT”). In re Hong Chen, No.
12 A078 691 807 (B.I.A. Nov. 23, 2010), aff’g No. A078 691 807
13 (Immig. Ct. N.Y. City Nov. 13, 2008). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history of this case.
16 Under the circumstances of this case, we have
17 considered both the IJ’s and the BIA’s opinions “for the
18 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
19 (2d Cir. 2008) (quoting Wangchuck v. DHS,
448 F.3d 524, 528
20 (2d Cir. 2006)). The applicable standards of review are
21 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
22 v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
1 A. Asylum
2 We lack jurisdiction to review the IJ’s decision
3 insofar as it pretermitted Chen’s untimely asylum
4 application because he does not present a constitutional
5 claim or question of law with respect to that determination.
6 See 8 U.S.C. § 1158(a)(3); Gui Yin Liu v. INS, 508 F.3d
7 716, 720 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of
8 Justice,
471 F.3d 315, 329-30 (2d Cir. 2006). Accordingly,
9 we dismiss Chen’s petition for review to this extent. See
10 Xiao Ji Chen, 471 F.3d at 329. However, we may review the
11 agency’s denial of withholding of removal and CAT relief.
12 See id. at 332-33.
13 B. Withholding of Removal and CAT
14 For applications like Chen’s that are governed by the
15 REAL ID Act of 2005, the agency may, considering the
16 totality of the circumstances, base a credibility finding
17 upon an applicant’s demeanor, the plausibility of his
18 account, and inconsistencies in his statements, without
19 regard to whether they go “to the heart of the applicant’s
20 claim.” 8 U.S.C. § 1229a(c)(4)(C). Here, the agency’s
21 adverse credibility determination is supported by
22 substantial evidence.
3
1 In finding Chen not credible, the agency reasonably
2 relied on the fact that Chen provided inconsistent testimony
3 about whether he had previously sought to come to the United
4 States. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
5 Cir. 2008). During his hearing, Chen testified that, aside
6 from leaving China in September 2002 due to problems he
7 encountered while practicing Falun Gong, he had never wanted
8 to leave China at any other time, for any other reason.
9 After Chen was presented with photographs of his former
10 fiancée, however, he admitted that he had applied for a
11 fiancé visa in 2001. Nevertheless, he continued to maintain
12 that he had no intention of coming to the United States.
13 Because the IJ was entitled to rely on “any inaccuracies or
14 falsehoods” in Chen’s testimony “without regard to whether
15 [the] inconsistency, inaccuracy, or falsehood [went] to the
16 heart of [his] claim,” 8 U.S.C. § 1229a(c)(4)(C), the
17 agency did not err in finding him not credible based on this
18 inconsistent testimony.
19 Having found Chen’s testimony not credible, the agency
20 reasonably noted that his failure to provide corroboration
21 of his claim further undermined his credibility. See Biao
22 Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (per
4
1 curiam); Maladho Djehe Diallo v. Gonzales, 445 F.3d 624,
2 633-34 (2d Cir. 2006). The IJ found that Chen failed to
3 provide corroboration or documentation with respect to his
4 heart condition, which Chen testified had prompted him to
5 join Falun Gong as an alternative to unsuccessful attempts
6 at medical treatment. Chen initially stated that he had
7 proof of his heart condition in China, but, when asked why
8 he did not submit that proof, he testified that he had not
9 kept it because the events occurred many years ago. The IJ
10 considered this explanation and did not err in finding it
11 insufficient, particularly given that Chen did not explain
12 why he changed his answer about whether he had medical
13 evidence in China or demonstrate any efforts to obtain
14 medical evidence. See Biao Yang, 496 F.3d at 273; Majidi v.
15 Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005). Ultimately,
16 because a reasonable fact-finder would not be compelled to
17 conclude to the contrary, we defer to the IJ’s adverse
18 credibility determination. See Xiu Xia Lin, 534 F.3d at
19 167.
20 Finally, Chen argues that he qualifies for asylum and
21 withholding of removal based on his fear that Chinese
22 authorities will sterilize him because he intends to have
5
1 two or more children. We decline to consider this issue
2 because, as the Government notes, Chen did not raise this
3 issue before the agency. See Foster v. INS, 376 F.3d 75,
4 77-78 (2d Cir. 2004).
5 For the foregoing reasons, the petition for review is
6 DISMISSED in part and DENIED in part. As we have completed
7 our review, the pending motion for a stay of removal in this
8 petition is DISMISSED as moot.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
14
6
