Filed: Oct. 28, 2014
Latest Update: Mar. 02, 2020
Summary: 10-3549 Chen v. Holder BIA Vomacka, IJ A089 915 688 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: 10-3549 Chen v. Holder BIA Vomacka, IJ A089 915 688 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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10-3549
Chen v. Holder
BIA
Vomacka, IJ
A089 915 688
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 28th day of October, two thousand fourteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11
12 _____________________________________
13
14 SONG MEI CHEN,
15 Petitioner,
16
17 v. 10-3549
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Michael Brown, New York, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
07162014-B1-1
1 General; Paul Fiorino, Senior
2 Litigation Counsel; Katherine A.
3 Smith, Trial Attorney, Office of
4 Immigration Litigation, United
5 States Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Song Mei Chen, a native and citizen of the
13 People’s Republic of China, seeks review of an August 25,
14 2010, decision of the BIA, affirming the December 18, 2009,
15 decision of Immigration Judge (“IJ”) Alan Vomacka, denying
16 her application for asylum, withholding of removal, and
17 relief under the Convention Against Torture (“CAT”). In re
18 Song Mei Chen, No. A089 915 688 (B.I.A. Aug. 25, 2010),
19 aff’g No. A089 915 688 (Immig. Ct. N.Y. City Dec. 18, 2009).
20 We assume the parties’ familiarity with the underlying facts
21 and procedural history of this case.
22 Under the circumstances of this case, we have reviewed
23 both the IJ’s and the BIA’s opinions “for the sake of
24 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
25 2008) (quotation marks and citations omitted). The
26 applicable standards of review are well established. See
07162014-B1-1 2
1 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,
2 546 F.3d 138, 157-58 (2d Cir. 2008); Xiu Xia Lin v. Mukasey,
3
534 F.3d 162, 165-66 (2d Cir. 2008).
4 I. Past Persecution
5 The agency may, considering the totality of the
6 circumstances, base a credibility finding on inconsistencies
7 in an applicant’s statements and other record evidence
8 without regard to whether they go “to the heart of the
9 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
10
Lin, 534 F.3d at 163-64. Substantial evidence supports the
11 agency’s determination that Chen was not credible as to her
12 claim that family planning officials had forced her to
13 terminate a pregnancy.
14 Chen admitted that neither she nor her husband
15 mentioned her alleged forced abortion during her husband’s
16 removal proceedings, in which he sought asylum based on his
17 fear of persecution under China’s coercive population
18 control program. See Xiu Xia
Lin, 534 F.3d at 166 n.3.
19 That omission was significant because, at the time of his
20 application, Chen’s husband would have qualified for asylum
21 based on Chen’s alleged forced abortion. See Shi Liang Lin
22 v. U.S. Dep’t of Justice,
494 F.3d 296, 299 (2d Cir. 2007).
07162014-B1-1 3
1 Chen did not provide a compelling explanation for this
2 omission. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
3 2005).
4 Having questioned Chen’s credibility, the agency
5 reasonably relied further on her failure to provide certain
6 evidence corroborating her claim or rehabilitating her
7 testimony. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d
8 Cir. 2007). For example, the agency reasonably required
9 supporting testimony from Chen’s husband, as he had an
10 interest in the outcome of her proceedings. Her husband’s
11 immigration status did not prevent him from testifying. See
12 Yan Juan Chen v. Holder,
658 F.3d 246, 253 (2d Cir. 2011).
13 Additionally, Chen’s abortion certificate did not
14 rehabilitate her claim that family planning officials used
15 force during her alleged procedure, see Xiao Xing Ni v.
16 Gonzales,
494 F.3d 260, 263 (2d Cir. 2007). The United
17 States Department of State has reported that “the only
18 document that might resemble [an abortion] certificate . . .
19 is a document issued by hospitals upon a patient’s request
20 after a voluntary abortion.” Bureau of Democracy, Human
21 Rights and Labor, U.S. Dep’t of State, China: Profile of
22
07162014-B1-1 4
1 Asylum Claims and Country Conditions 24 (Apr. 14, 1998),
2 quoted in Xiao Xing Ni, 494 F.3d at 263.
3 Given the inconsistency and corroboration findings, the
4 agency’s adverse credibility determination is supported by
5 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);
6 see also Xiu Xia
Lin, 534 F.3d at 167.
7 II. Well-Founded Fear of Persecution
8 For largely the same reasons as this Court set forth in
9 Jian Hui Shao,
546 F.3d 138, we find no error in the
10 agency’s determination that Chen failed to demonstrate her
11 eligibility for relief based on her fear of future
12 persecution for her alleged violation of China’s population
13 control program. See
id. at 158-72. The agency did not err
14 in giving diminished weight to a statement from Chen’s
15 father stating that family planning officials wanted to
16 sterilize and fine her because it was written by an
17 interested witness who was not subject to cross-examination.
18 See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315,
19 341-42 (2d Cir. 2006); see also In re H-L-H- & Z-Y-Z-, 25 I.
20 & N. Dec. 209, 215 (BIA 2010) (giving diminished weight to
21 letters by interested witnesses not subject to cross-
07162014-B1-1 5
1 examination), abrogated on other grounds by Hui Lin Huang v.
2 Holder, 677 F.3d 130 (2d Cir. 2012).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
07162014-B1-1 6
