Filed: May 03, 2012
Latest Update: Feb. 12, 2020
Summary: 11-628-ag Chen v. Holder BIA LaForest, IJ A088 533 169 A088 533 170 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 DATABA
Summary: 11-628-ag Chen v. Holder BIA LaForest, IJ A088 533 169 A088 533 170 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 DATABAS..
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11-628-ag
Chen v. Holder
BIA
LaForest, IJ
A088 533 169
A088 533 170
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 3rd day of May, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT A. KATZMANN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 HUIRONG CHEN, FA QIN SUN,
14 Petitioners,
15
16 v. 11-628-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Andy Wong, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Alison Marie Igoe, Senior
27 Litigation Counsel; Glen T. Jaeger,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Petitioners’
4 petition for review is DENIED.
5 Huirong Chen and Fa Qin Sun, natives and citizens of
6 China, seek review of a January 28, 2011 decision of the BIA
7 affirming the January 7, 2009 decision of an immigration
8 judge (“IJ”) denying their application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Huirong Chen and Fa Qin Sun,
11 Nos. A088 533 169/170 (B.I.A. Jan. 28, 2011), aff’g Nos.
12 A088 533 169/170 (Immig. Ct. N.Y. City Jan. 7, 2009). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history of this case, which we reference only
15 as necessary to explain our decision.
16 We have reviewed the IJ’s opinion as supplemented and
17 modified by the BIA’s decision, excluding the portions of
18 the IJ’s decision not relied upon by the BIA. See Xue Hong
19 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
20 2005). The applicable standards of review are well-
21 established. See 8 U.S.C. § 1252(b)(4)(B); Shu Wen Sun v.
22 BIA,
510 F.3d 377, 379 (2d Cir. 2007). On appeal to the
23 BIA, petitioners failed to challenge the IJ’s denial of
2
1 relief sought by Petitioners based on Chen’s Christian faith
2 or political activities in the United States. Accordingly,
3 we address only the denial of relief requested based on
4 Chen’s claim that she suffered a forced abortion. See
5 Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).
6 We conclude that the agency’s adverse credibility
7 determination is supported by substantial evidence and is
8 dispositive. We “defer . . . to an IJ’s credibility
9 determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling.” Xiu Xia Lin
12 v. Mukasey,
534 F.3d 162, 167 (2d Cir. 2008). For asylum
13 applications governed by the REAL ID Act, such as this one,
14 the agency may, considering the totality of the
15 circumstances, base a credibility finding on an asylum
16 applicant’s demeanor, the plausibility of her account, and
17 inconsistencies in her statements, without regard to whether
18 they go “to the heart of the applicant’s claim.” 8 U.S.C. §
19 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64.
20 On several occasions, Chen gave non-responsive answers
21 to key questions, and several questions had to be repeated
3
1 numerous times before she gave a responsive answer.1 We
2 give particular deference to an IJ’s observations regarding
3 an applicant’s demeanor. See Majidi v. Gonzales, 430 F.3d
4 77, 81 n.1 (2d Cir. 2005). The demeanor finding in this
5 case was supported by multiple specific instances of non-
6 responsive testimony. See Li Hua Lin v. U.S. Dep’t of
7 Justice,
453 F.3d 99, 109 (2d Cir. 2006).
8 Petitioner’s argument that her lack of education
9 explains her non-responsive answers is not persuasive. The
10 questions asked of her were about her own personal
11 experiences. Further, there was no evidence to support her
12 passing assertion that she may suffer from mental
13 retardation. We will not overturn an adverse credibility
14 finding absent record evidence that compels reversal,
15
Majidi, 430 F.3d at 79-80, and this record is barren of such
16 evidence.
17 Further, although Petitioner argues that the agency
18 erred in applying the adverse credibility finding it made
19 regarding Petitioner’s religious and political activity
1
We address only those findings affirmed by the BIA
and do not reach the finding that the BIA expressly
declined to address, i.e., the finding related to Chen’s
testimony regarding the type of abortion she underwent.
See Xue Hong Yang, 426 F.3d at 522.
4
1 claims to her forced abortion claim, this Court has held
2 that “a single false document or a single instance of false
3 testimony may (if attributable to the petitioner) infect the
4 balance of the alien’s uncorroborated or unauthenticated
5 evidence.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
6 2007).
7 We also find no error in the agency’s finding that
8 Chen’s failure to supply corroboration of her claims
9 supported the adverse credibility determination. See Biao
10 Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (per
11 curiam). The decision to afford the letter from Chen’s
12 mother limited weight was likewise within the agency’s
13 discretion. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
14 F.3d 315, 342 (2d Cir. 2006). Further, Chen’s argument that
15 the BIA improperly applied a de novo standard of review to
16 the IJ’s fact-finding is without merit, as the BIA expressly
17 applied the proper “clearly erroneous” standard set forth in
18 8 C.F.R. § 1003.1(d)(3)(i).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
23 this petition is DISMISSED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
6
