Filed: Jun. 05, 2013
Latest Update: Feb. 12, 2020
Summary: 11-5401 Chen v. Holder BIA Vomacka, IJ A094 793 710 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: 11-5401 Chen v. Holder BIA Vomacka, IJ A094 793 710 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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11-5401
Chen v. Holder
BIA
Vomacka, IJ
A094 793 710
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 5th day of June, two thousand thirteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 GUANG WU CHEN, AKA GUANWU CHEN,
14 Petitioner,
15
16 v. 11-5401
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Stephen J. Flynn,
27 Assistant Director; Jeffrey R.
28 Meyer, 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 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Guang Wu Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a December 6, 2011,
7 decision of the BIA affirming the July 8, 2010, decision of
8 Immigration Judge (“IJ”) Alan A. Vomacka, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Guang
11 Wu Chen, No. A094 793 710 (B.I.A. Dec. 6, 2011), aff’g No.
12 A094 793 710 (Immig. Ct. N.Y. City July 8, 2010). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
20
562 F.3d 510, 513 (2d Cir. 2009).
21 For asylum applications, like Chen’s, governed by the
22 amendments made to the Immigration and Nationality Act by
23 the REAL ID Act of 2005, the agency may, considering the
2
1 totality of the circumstances, base a credibility finding on
2 an asylum applicant’s “demeanor, candor, or responsiveness,”
3 the plausibility of his account, and inconsistencies in his
4 statements, without regard to whether they go “to the heart
5 of the applicant’s claim.” See 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
7 167 (2d Cir. 2008). We will “defer to an IJ’s credibility
8 determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make” such a ruling. Xiu Xia
Lin, 534 F.3d at 167.
11 In this case, the agency reasonably based its adverse
12 credibility determination on Chen’s inconsistencies,
13 implausibilities, demeanor, and lack of corroboration.
14 Chen testified in July 2010 that he had been attending
15 a Christian church in New York City once or twice a week
16 since February 2009, and had attended no other church in the
17 United States. However, in a sworn affidavit submitted to
18 the IJ, signed in April 2010, Chen indicated that he lived
19 and attended church in Phoenix, Arizona. When the IJ asked
20 Chen about this discrepancy, Chen stated that he “did not
21 hear very clearly.” Chen additionally testified that in
22 China, he began attending church in March 2007, was baptized
23 in August 2007, and received a baptismal certificate from
3
1 the church on the same day. However, the baptismal
2 certificate he submitted as evidence was issued in 2009 and
3 indicates that Chen began attending church in China in May
4 2007. When asked about this inconsistency, Chen failed to
5 explain the inconsistency, stating only that the baptismal
6 certificate he presented was the only one he had received.
7 In finding Chen not credible, the agency pointed to these
8 inconsistencies, and, after giving Chen an opportunity to
9 reconcile the discrepancies, reasonably rejected his
10 explanations. See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v.
11 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
12 The adverse credibility determination is further
13 supported by the IJ’s implausibility and demeanor findings.
14 With respect to implausibility, the IJ found, and the BIA
15 agreed, that it was implausible that an underground church
16 in China would issue official documents, such as the
17 baptismal certificate, on church letterhead, or that after
18 Chen was detained and beaten for attending an underground
19 church, he would invite a village official’s son to attend
20 the church. Chen does not challenge these implausibility
21 findings other than to say the IJ failed to consider his
22 explanations. The agency reasonably based its adverse
23 credibility determination, in part, on these
4
1 implausibilities, see Wensheng Yan v. Mukasey, 509 F.3d 63,
2 67 (2d Cir. 2007); see also Siewe v. Gonzales,
480 F.3d 160,
3 168-69 (2d Cir. 2007), and Chen failed to explain why he
4 invited the village official’s son to his church and his
5 responses to questions about his church’s documentation were
6 themselves inconsistent. As to demeanor, the IJ noted that
7 Chen seemed “to be not entirely focused on his answers” and
8 seemed confused as to what documents were being discussed.
9 Because the IJ was in the best position to observe Chen’s
10 manner while testifying, we afford the demeanor finding
11 particular deference. See
Majidi, 430 F.3d at 81 n.1.
12 Finally, the agency’s adverse credibility finding was
13 additionally based on Chen’s failure to provide
14 corroborative evidence of his arrest and detention in China.
15 The agency noted that Chen submitted a Notice of Summons
16 from the local Chinese security bureau, but concluded that
17 additional corroborative evidence, such as letters from
18 Chen’s relatives or church, was reasonably available and
19 would have bolstered his claim. Because the IJ had already
20 called Chen’s credibility into question due to his
21 inconsistencies, implausibilities, and demeanor, the agency
22 did not err in relying on the lack of corroboration as
23 further support for its adverse credibility determination.
24 See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007)
5
1 (“An applicant’s failure to corroborate . . . testimony may
2 bear on credibility, because the absence of corroboration in
3 general makes an applicant unable to rehabilitate testimony
4 that has already been called into question.”).
5 Given these multiple grounds, the totality of the
6 circumstances support the agency’s adverse credibility
7 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
8 Lin, 534 F.3d at 167. Accordingly, the agency did not err
9 in denying Chen asylum, withholding of removal, and CAT
10 relief. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir.
11 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
6
