Filed: Sep. 06, 2013
Latest Update: Feb. 12, 2020
Summary: 12-1616 Chen v. Holder BIA Schoppert, IJ A093 043 011 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: 12-1616 Chen v. Holder BIA Schoppert, IJ A093 043 011 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..
More
12-1616
Chen v. Holder
BIA
Schoppert, IJ
A093 043 011
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 6th day of September, two thousand thirteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11
12 _____________________________________
13
14 ZHEN CHUN CHEN,
15 Petitioner,
16
17 v. 12-1616
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Adedayo O. Idowu, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
27 Assistant Attorney General; Song
28 Park, Senior Litigation Counsel;
29 Joseph A. O'Connell, Attorney,
30 Office of Immigration Litigation,
1
2 United States Department of
3 Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Zhen Chun Chen, a native and citizen of
10 China, seeks review of a March 23, 2012 order of the BIA,
11 affirming the May 26, 2010 decision of Immigration Judge
12 (“IJ”) Douglas B. Schoppert, who denied his application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Zhen Chun Chen,
15 No. A093 043 011 (B.I.A. Mar. 23, 2012), aff’g No. A093 043
16 011 (Immig. Ct. New York City May 26, 2010). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we review the
20 decisions of both the IJ and the BIA. See Yun-Zui Guan v.
21 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
22 The applicable standards of review are well-established.
23 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
24 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
25
2
1 For applications such as Chen’s, which are governed by
2 the REAL ID Act, the agency may base a credibility finding
3 on an applicant’s demeanor, the plausibility of his account,
4 and inconsistencies in his statements, without regard to
5 whether they go “to the heart of the applicant’s claim.”
6 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia
10 Lin, 534 F.3d at 167.
11 Contrary to Chen’s assertions, the agency reasonably
12 found that he was not credible on the basis of testimonial
13 inconsistencies concerning: (1) the type of church he
14 attended in China; (2) when he was persecuted; and (3) the
15 length of his detention. See 8 U.S.C. § 1158(b)(1)(B)(iii);
16 Xiu Xia
Lin, 534 F.3d at 167. Although Chen argues that
17 these inconsistencies were too minor to support an adverse
18 credibility determination, “an IJ may rely on any
19 inconsistency or omission in making an adverse credibility
20 determination as long as the ‘totality of the circumstances’
21 establishes that an asylum applicant is not credible.” See
22 Xiu Xia
Lin, 534 F.3d at 167 (emphasis in original).
23 Moreover, because Chen alleged that he suffered a single
3
1 incident of persecution based on his membership in an
2 underground Christian church, the IJ correctly noted that
3 his testimonial inconsistencies regarding whether he
4 attended an underground church, when he suffered
5 persecution, and the duration of the detention under which
6 his persecution occurred went directly to the heart of his
7 claim. See Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d
8 Cir. 2003), overruled by Xiu Xia Lin,
534 F.3d 162.
9 Chen’s contention that the IJ failed to identify the
10 testimonial inconsistencies at his hearing or request an
11 explanation is misplaced. While it is true that an IJ may
12 not rest an adverse credibility finding on a non-dramatic
13 discrepancy without first putting a petitioner on notice and
14 offering an opportunity to explain, the agency need not give
15 such notice and opportunity where, as here, it relied on
16 dramatic discrepancies that went to the very heart of an
17 applicant’s claim. See Ming Shi Xue v. BIA,
439 F.3d 111,
18 125 (2d Cir. 2006). In any event, Chen was not denied an
19 opportunity to explain his testimonial inconsistencies
20 because his attorney submitted a written closing statement
21 indicating that they were the result of interpretation
22 problems and Chen’s poor education. However, the IJ did not
23 err in failing to credit these explanations, which were not
4
1 compelling in light of Chen’s testimony that Mandarin was
2 his best dialect and he had no problems understanding the
3 interpreter. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
4 Cir. 2005) (holding that the agency need not credit an
5 applicant’s explanations for inconsistent testimony unless
6 those explanations would compel a reasonable fact-finder to
7 do so).
8 Because we find the agency’s adverse credibility
9 determination supported by substantial evidence on the basis
10 of Chen’s testimonial inconsistencies, we decline to reach
11 the IJ’s demeanor finding. See INS v. Bagamasbad,
429 U.S.
12 24, 25 (1976) (“As a general rule courts and agencies are
13 not required to make findings on issues the decision of
14 which is unnecessary to the results they reach.”); see also
15 Shunfu Li v. Mukasey,
529 F.3d 141, 150 (2d Cir. 2008)
16 (finding that remand is futile where the Court can
17 confidently “predict that the agency would reach the same
18 decision absent the errors that were made” (internal
19 quotation marks omitted)).
20 Having reasonably found that Chen failed to establish
21 his eligibility for asylum on credibility grounds, the
22 agency did not err in denying withholding of removal, as
23 both claims shared the same factual predicate. See Paul v.
5
1 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). The agency also
2 did not err in finding that Chen failed to establish his
3 entitlement to CAT relief in the absence of credible
4 testimony, because he failed to present any documentary
5 evidence regarding the torture of Christians in China, a
6 dispositive finding that Chen has failed to contest. See In
7 re M-B-A-, 23 I. & N. Dec. 474, 479-80 (B.I.A. 2002) (noting
8 that a claim “based on a chain of assumptions and a fear of
9 what might happen” is insufficient to demonstrate
10 eligibility for relief under the CAT); see also Yueqing
11 Zhang v. Gonzales,
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
12 2005) (providing that issues not argued in briefs are deemed
13 abandoned).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, the pending motion
16 for a stay of removal in this petition is DENIED as moot.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
6
