Filed: Apr. 24, 2013
Latest Update: Mar. 28, 2017
Summary: 12-602 Chen v. Holder BIA LaForest, IJ A089 253 557 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: 12-602 Chen v. Holder BIA LaForest, IJ A089 253 557 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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12-602
Chen v. Holder
BIA
LaForest, IJ
A089 253 557
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 24th day of April, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN ZHONG CHEN,
14 Petitioner,
15
16 v. 12-602
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Peter D. Lobel, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Terri J. Scadron,
27 Assistant Director; Hillel R. Smith,
28 Attorney, Office of Immigration
29 Litigation, Civil Division, 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 Jian Zhong Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a January 19, 2012, order
7 of the BIA, affirming the September 23, 2009, decision of
8 Immigration Judge (“IJ”) Brigitte LaForest, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Jian
11 Zhong Chen, No. A089 253 557 (B.I.A. Jan. 19, 2012), aff’g
12 No. A089 253 557 (Immig. Ct. N.Y. City Sept. 23, 2009).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history.
15 Under the circumstances of this case, we review both
16 the BIA’s and the IJ’s opinions. Zaman v. Mukasey, 514 F.3d
17 233, 237 (2d Cir. 2008). We review the agency’s legal
18 conclusions de novo and uphold its factual findings “if they
19 are supported by reasonable, substantial and probative
20 evidence in the record.” Yanqin Weng v. Holder,
562 F.3d
21 510, 513 (2d Cir. 2009) (internal quotation marks omitted);
22 see also 8 U.S.C. § 1252(b)(4)(B).
23
2
1 To establish eligibility for asylum, an applicant must
2 show that he has suffered past persecution or has a well-
3 founded fear of future persecution “on account of race,
4 religion, nationality, membership in a particular social
5 group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
6 Where, as here, an asylum application is governed by the
7 REAL ID Act, the agency may, after considering the totality
8 of the circumstances, base an adverse credibility finding on
9 the applicant’s demeanor, the plausibility of his account,
10 and inconsistencies in his statements, without regard to
11 whether they go “to the heart of the applicant’s claim.” 8
12 U.S.C. § 1158(b)(1)(B)(iii).
13 Substantial evidence supports the agency’s
14 determination that Chen did not testify credibly regarding
15 his family planning claim, and that determination formed an
16 adequate basis for denying relief. “[A]n IJ may rely on any
17 inconsistency or omission in making an adverse credibility
18 determination as long as the totality of the circumstances
19 establishes that an asylum applicant is not credible.” Xiu
20 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
21 (internal quotation marks omitted). In finding Chen not
22 credible, the agency reasonably relied on multiple
3
1 discrepancies both within Chen’s testimony and between
2 Chen’s testimony and other evidence in the record.
3 For example, Chen’s testimony regarding his second
4 daughter’s birthplace did not comport with the information
5 on her birth certificate. Chen conceded that the birth
6 certificate was fake. See Siewe v. Gonzales, 480 F.3d 160,
7 170 (2d Cir. 2007) (noting that once an IJ concludes that a
8 document is false, he or she is “free to deem suspect other
9 documents (and to disbelieve other testimony) that depend
10 for probative weight upon [the applicant’s] veracity”).
11 Additionally, there were inconsistencies between Chen’s
12 testimony and a letter from his wife describing an alleged
13 May 2004 assault by Chinese family planning officials.
14 Contrary to Chen’s argument, the agency was not required to
15 find that a medical record he submitted rehabilitated his
16 testimony about the assault, as the report confirmed an
17 injury but provided no information about the motive behind
18 the attack or the identity of the individuals who
19 perpetrated it. See Biao Yang v. Gonzales,
496 F.3d 268,
20 273 (2d Cir. 2007) (holding that a failure to corroborate,
21 and thereby rehabilitate, testimony that has been called
4
1 into question can bear negatively on an applicant’s
2 credibility).
3 Chen also failed to provide a consistent account of the
4 circumstances surrounding his alleged escape from detention
5 in May 2005, as well as when and where his wife was in
6 hiding following that escape. Finally, Chen’s testimony
7 that he was in hiding continuously from May 2005 until March
8 2007 is undermined by a residence identification card that
9 was issued to him in April 2006.
10 The agency reasonably concluded that Chen failed to
11 provide compelling explanations for these discrepancies. “A
12 petitioner must do more than offer a plausible explanation
13 for his inconsistent statements to secure relief; he must
14 demonstrate that a reasonable fact-finder would be compelled
15 to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77,
16 80 (2d Cir. 2005) (internal quotation marks omitted). Chen
17 claims that he suffers from a medical condition that impairs
18 his memory and renders him incapable of providing clear and
19 consistent testimony, but the medical record he submitted to
20 support that claim indicates only that Chen received
21 treatment for upper back and knee pain in May 2004.
22 Accordingly, because a reasonable fact-finder would not be
5
1 compelled to excuse the many discrepancies in Chen’s
2 testimony, the agency’s adverse credibility determination is
3 supported by substantial evidence. See Biao Yang, 496 F.3d
4 at 273.
5 Chen contends that his claim of a well-founded fear of
6 future persecution is not precluded by the adverse
7 credibility finding. This argument is without merit, as the
8 only asserted basis for such a fear is the past persecution
9 he allegedly suffered for violating China’s family planning
10 policy. See Paul v. Gonzales,
444 F.3d 148, 154 (2d Cir.
11 2006) (“[A]n applicant may prevail on a theory of future
12 persecution despite an IJ’s adverse credibility ruling as to
13 past persecution, so long as the factual predicate of the
14 applicant’s claim of future persecution is independent of
15 the testimony that the IJ found not to be credible.”).
16 Therefore, the agency’s denial of asylum was not
17 erroneous. Nor was its denial of withholding of removal and
18 CAT relief. A withholding claim is precluded when it is
19 “based on the very fact, or set of facts, that the IJ found
20 not to be credible” with respect to an asylum claim. Id. at
21 156 (withholding of removal). Similarly, a CAT claim fails
22 where the agency has made an “affirmable finding” that a set
6
1 of facts supporting “the only potentially valid basis” for
2 the claim have not been established. Xue Hong Yang v. U.S.
3 Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). Because
4 all three of Chen’s claims share the same factual predicate,
5 denial of each was supported by the agency’s adverse
6 credibility finding.
7 For the foregoing reasons, the petition for review is
8 DENIED. Chen’s pending motion for a stay of removal is
9 DENIED as moot.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
7
