Filed: Dec. 14, 2009
Latest Update: Mar. 02, 2020
Summary: 09-1290-ag Chen v. Holder BIA Brennan, IJ A098 222 571 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
Summary: 09-1290-ag Chen v. Holder BIA Brennan, IJ A098 222 571 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 T..
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09-1290-ag
Chen v. Holder
BIA
Brennan, IJ
A098 222 571
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 14 th day of December, two thousand nine.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 WEI SHANG CHEN,
14 Petitioner,
15
16 v. 09-1290-ag
17 NAC
18 ERIC H. HOLDER, Jr., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General, David V. Bernal, Assistant
3 Director, Lauren E. Fascett, Trial
4 Attorney, Office of Immigration
5 Litigation, Civil Division, United
6 States Department of Justice,
7 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 DENIED.
5 Petitioner Wei Shang Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a March 10, 2009
7 order of the BIA affirming the July 11, 2007 decision of
8 Immigration Judge (“IJ”) Noel Brennan, denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Wei
11 Shang Chen, No. A098 222 571 (B.I.A. Mar. 10, 2009), aff’g
12 No. A098 222 571 (Immig. Ct. N.Y. City July 11, 2007). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 When the BIA issues an opinion that fully adopts the
16 IJ’s decision, this Court reviews the IJ’s decision. See
17 Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d
18 Cir. 2007). We review the agency’s factual findings,
2
1 including adverse credibility determinations, under the
2 substantial evidence standard. 1 See 8 U.S.C. §
3 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95
4 (2d Cir. 2008). We review de novo questions of law and the
5 application of law to undisputed fact. See Salimatou Bah v.
6 Mukasey,
529 F.3d 99, 110 (2d Cir. 2008).
7 Substantial evidence supports the IJ’s adverse
8 credibility determination. The IJ reasonably relied on
9 Chen’s demeanor, which she found to be “particularly
10 telling.” This Court ordinarily affords particular
11 deference to the IJ’s assessment of demeanor, see Majidi v.
12 Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005); Zhou Yun Zhang
13 v. INS,
386 F.3d 66, 73-74 (2d Cir. 2004), and Chen advances
14 no argument suggesting that we should not do so here,
15 particularly when the IJ offered additional inconsistency
16 findings. See Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d
17 99, 109 (2d Cir. 2006) (“We can be . . . more confident in
18 our review of observations about an applicant’s demeanor
1
Because Chen filed his asylum application before
May 11, 2005, the amendments made to the Immigration and
Nationality Act by the REAL ID Act of 2005 do not apply
to his asylum application. See Pub. L. No. 109-13,
§ 101(h)(2), 119 Stat. 231, 305 (2005).
3
1 where . . . they are supported by specific examples of
2 inconsistent testimony.”).
3 Furthermore, there is no merit to Chen’s argument that his
4 inconsistent testimony did not justify an adverse credibility
5 finding. The IJ found that: (1) although Chen initially
6 testified that he was detained at 8:00 a.m., he later stated
7 that he was detained at 10:00 a.m.; (2) although Chen
8 submitted evidence stating that he hid at his aunt’s house
9 following his detention, he testified that he left his aunt’s
10 house to stay with a friend; and (3) although a letter from
11 his father states that Chen was also detained in July 1999,
12 Chen testified that the incident occurred in September 1999.
13 Although minor and isolated discrepancies may be insufficient
14 to support an adverse credibility finding, see Diallo v. INS,
15 232 F.3d 279, 288 (2d Cir. 2000), the multiple discrepancies
16 here were not minor, and they relate to events that go to the
17 heart of Chen’s claim – his prior detentions and beatings by
18 government officials. Thus, the IJ reasonably relied on their
19 cumulative effect to call into question Chen’s credibility.
20 See Tu Lin v. Gonzales,
446 F.3d 395, 402 (2d Cir. 2006).
21 There is also no merit to Chen’s assertion that the IJ’s
22 finding regarding the sufficiency of the corroborating
4
1 evidence he submitted was erroneous. An IJ need not first
2 identify the particular pieces of missing, relevant evidence,
3 and show that this evidence was reasonably available to the
4 applicant before relying on a lack of corroboration to support
5 an adverse credibility finding. See Xiao Ji Chen v. U.S.
6 Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006). As the IJ
7 did not find Chen’s testimony credible, she properly noted the
8 absence of documentary evidence that may have corroborated his
9 claim. See
id.
10 These proper findings notwithstanding, as Chen asserts,
11 the agency erred in finding that he provided inconsistent
12 testimony as to his beating by Village Committee members
13 during his 2004 detention. Indeed, the record reveals that
14 prior to his merits hearing, Chen submitted a corrected asylum
15 application stating that he was beaten in the course of that
16 detention. However, remand would be futile in this case
17 because the IJ’s broader credibility determination is amply
18 supported by the record and it can be confidently predicted
19 based on the IJ’s non-erroneous findings that the agency would
20 reach the same credibility determination absent this error.
21 See
id. at 335.
22 Accordingly, substantial evidence supports the agency’s
5
1 adverse credibility determination. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii). Because the only evidence of a threat
3 to Chen’s life or freedom depended upon his credibility, the
4 adverse credibility determination in this case necessarily
5 precludes success on his claim for withholding of removal and
6 CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
7 2006); Wu Biao Chen v. INS,
344 F.3d 272, 275 (2d Cir. 2003).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument in
13 this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
20 By:____________________________
6
