Filed: May 16, 2014
Latest Update: Mar. 02, 2020
Summary: 12-3549 Chen v. Holder BIA Videla, IJ A089 922 641 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
Summary: 12-3549 Chen v. Holder BIA Videla, IJ A089 922 641 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 NOTAT..
More
12-3549
Chen v. Holder
BIA
Videla, IJ
A089 922 641
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 16th day of May, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROSEMARY S. POOLER,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 YAN CHEN,
14 Petitioner,
15
16 v. 12-3549
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Norman Kwai Wing Wong, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Ernesto H. Molina,
28 Jr., Assistant Director; D. Nicholas
29 Harling, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 motion to supplement
4 the record is GRANTED and the petition for review is DENIED.
5 Yan Chen, a native and citizen of China, seeks review
6 of an August 13, 2012, decision of the BIA affirming the
7 June 30, 2011, decision of Immigration Judge (“IJ”) Gabriel
8 C. Videla, which denied her application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Yan Chen, No. A089 922 641
11 (B.I.A. Aug. 13, 2012), aff’g No. A089 922 641 (Immig. Ct.
12 N.Y. City June 30, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Because the BIA adopted and affirmed the IJ’s decision,
16 we have reviewed the IJ’s decision as supplemented by the
17 BIA decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271
18 (2d Cir. 2005). The applicable standards of review are
19 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
20 v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 For applications such as this one, governed by the
22 amendments made to the Immigration and Nationality Act by
23 the REAL ID Act of 2005, “[c]onsidering the totality of the
2
1 circumstances,” the agency may base a credibility
2 determination on the demeanor of the applicant as well as
3 the consistency in the applicant’s statements and between
4 those statements and record evidence, regardless of whether
5 an inconsistency “goes to the heart of the applicant’s
6 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin
7 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
8 The agency reasonably relied on Chen’s tendency to
9 change her testimony when confronted with conflicting
10 evidence. See Xiu Xia
Lin, 534 F.3d at 167. First, Chen
11 testified that she had never had a passport in China, but
12 later admitted that she did have one. Second, Chen
13 initially stated that she had only lived in New York since
14 arriving in the United States, but later admitted that she
15 spent the majority of her time in Virginia and only commuted
16 to New York once a week for church. This amended testimony
17 was not corroborated by Chen’s witness, an elder in her
18 church, who stated that he had no idea Chen was commuting
19 from so far away to attend the weekly service. Because, in
20 addition to the fact that the agency may rely on any
21 inconsistency in reaching an adverse credibility
22 determination, Chen’s church attendance is directly material
3
1 to the authenticity of her claim that she practices
2 Christianity and has a well-founded fear of future
3 persecution on that basis, the agency did not err in relying
4 on it to find Chen not credible under the totality of the
5 circumstances. See Xiu Xia Lin, 534 F.3d at 167; see
6 also Siewe v. Gonzales,
480 F.3d 160, 170 (2d Cir. 2007)
7 (concluding that one instance of false testimony can infect
8 the balance of the evidence).
9 The agency’s adverse credibility determination is
10 further supported by its demeanor finding – that Chen had a
11 tendency to laugh or smile when confronted with inconsistent
12 testimony. We afford “particular deference” to credibility
13 determinations based on observation of the applicant’s
14 demeanor. See Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d
15 99, 109 (2d Cir. 2006); Jin Chen v. U.S. Dep’t of Justice,
16
426 F.3d 104, 113 (2d Cir. 2005).
17 Given the inconsistencies and the demeanor finding, the
18 adverse credibility determination is supported by
19 substantial evidence. See Xiu Xia
Lin, 534 F.3d at 167. As
20 the only evidence of a threat to Chen’s life or freedom
21 depended upon her credibility, the adverse credibility
22 determination is dispositive of her claims for asylum,
4
1 withholding of removal, and CAT relief, and we decline to
2 reach Chen’s challenge to the agency’s alternate burden of
3 proof finding. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
4 Cir. 2006); INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (per
5 curiam).
6 The motion to supplement the record is GRANTED and the
7 petition for review is DENIED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
5
