Filed: Aug. 03, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4396-ag Chen v. Holder BIA Nelson, IJ A093 397 420 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: 09-4396-ag Chen v. Holder BIA Nelson, IJ A093 397 420 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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09-4396-ag
Chen v. Holder
BIA
Nelson, IJ
A093 397 420
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 3 rd day of August, two thousand ten.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 XIONG CHEN,
14 Petitioner,
15
16 v. 09-4396-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Zhiyuan Qian, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; Richard M.
27 Evans, Assistant Director; Ann
28 Carroll Varnon, Civil Division,
29 United States Department of Justice,
30 Washington, D.C.
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 Xiong Chen, a native and citizen of the People’s Republic
6 of China, seeks review of a September 25, 2009, order of the
7 BIA, affirming the February 19, 2009, decision of Immigration
8 Judge (“IJ”) Barbara A. Nelson, which denied his application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Xiong Chen, No.
11 A093 397 420 (B.I.A. Sept. 25, 2009), aff’g No. A093 397 420
12 (Immig. Ct. N.Y. City Feb. 19, 2009). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
18 standards of review are well established. See 8 U.S.C. §
19 1252(b)(4)(B).
20 Substantial evidence supports the agency’s adverse
21 credibility determination. Under the REAL ID Act, considering
22 the totality of the circumstances, a trier of fact may base a
23 credibility determination on, among other factors, the
2
1 consistency between the applicant’s written and oral
2 statements, the consistency of such statements with other
3 evidence of record, and any inaccuracies or falsehoods in such
4 statements, without regard to whether an inconsistency,
5 inaccuracy, or falsehood goes to the heart of the applicant’s
6 claim. See 8 U.S.C. § 1158(b)(1)(B)(iii). Here, the agency
7 reasonably relied on: (1) Chen’s omission from his asylum
8 application and the supporting documents of any allegation
9 that he actively resisted the family planning cadres; (2)
10 inconsistencies between Chen’s testimony that he and his wife
11 went into hiding in his aunt’s house in October 1998 and his
12 aunt’s letter, which indicates they went into hiding in July
13 1998; and (3) a lack of reliable corroboration. See id.
14 While the IJ’s finding that Chen’s wife failed to indicate in
15 her letter that she was subjected to a forced abortion was
16 unsupported by the record, remand due to this erroneous
17 finding would be futile as the IJ relied on “substantial
18 evidence in the record” which, “considered in the aggregate,”
19 supported her adverse credibility determination, and therefore
20 “disregarding those aspects of the IJ’s reasoning that are
21 tainted by error, we can state with confidence that the same
22 decision would be made were the petition remanded.” Xiao Ji
3
1 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir.
2 2006). Moreover, the agency did not err in declining to
3 credit the explanations Chen offered for the discrepancies.
4 See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
5 Thus, the agency’s adverse credibility determination with
6 respect to Chen’s family planning claim was fatal to his
7 application for asylum and withholding of removal. See Paul
8 v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
9 To the extent Chen claimed that he suffered past
10 persecution on account of his attempted illegal departure from
11 China, the agency reasonably concluded that the harm Chen
12 suffered did not rise to the level of persecution. See
13 Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341 (2d
14 Cir. 2006). Rather, the record supports the IJ’s findings
15 that the treatment Chen experienced constituted prosecution
16 for his crime of departing without permission rather than
17 persecution. See Saleh v. U.S. Dep't of Justice,
962 F.2d
18 234, 239 (2d Cir. 1992) (“Punishment for violation of a
19 generally applicable criminal law is not persecution.”).
20 Furthermore, the agency reasonably concluded that Chen
21 failed to establish that he would be subjected to future
22 persecution or torture on account of his illegal departure
4
1 where the 2007 Department of State Profile of Asylum Claims
2 and Country Conditions indicates that Chinese citizens
3 returned from the United States are generally not harmed or
4 mistreated. See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d
5 Cir. 2006); Mu Xiang Lin v. U.S. Dep’t of Justice,
432 F.3d
6 156, 159-60 (2d Cir. 2005).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED,
10 and any pending motion for a stay of removal in this petition
11 is DISMISSED as moot. Any pending request for oral argument in
12 this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
19
20
5
