Filed: Nov. 06, 2014
Latest Update: Mar. 02, 2020
Summary: 13-924 Chen v. Holder BIA Cheng, IJ A087 475 403 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 NOTATI
Summary: 13-924 Chen v. Holder BIA Cheng, IJ A087 475 403 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 NOTATIO..
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13-924
Chen v. Holder
BIA
Cheng, IJ
A087 475 403
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 TO 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
2 Appeals for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of New
4 York, on the 6th day of November, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 YING QIANG CHEN,
14
15 Petitioner,
16
17 v. 13-924
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED
21 STATES ATTORNEY GENERAL,
22
23 Respondent.
24
25 _____________________________________
26
27 FOR PETITIONER: Nataliya I. Gavlin, New York, New
28 York.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Terri J. Scadron, Assistant
3 Director; Anthony W. Norwood, Senior
4 Litigation Counsel, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington D.C.
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 Ying Qiang Chen, a native and citizen of China, seeks
13 review of a February 22, 2013, decision of the BIA affirming
14 the December 14, 2010, decision of an Immigration Judge
15 (“IJ”), which denied his application for asylum, withholding
16 of removal, and relief pursuant to the Convention Against
17 Torture (“CAT”). In re Ying Qiang Chen, No. A087 475 403
18 (B.I.A. Feb. 22, 2013), aff’g No. A087 475 403 (Immig. Ct.
19 N.Y. City Dec. 14, 2010). We assume the parties’
20 familiarity with the underlying facts and procedural history
21 in this case.
22 Under the circumstances of this case, we have reviewed
23 the IJ’s decision as modified by the BIA decision. See Xue
24 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
25 Cir. 2005). The applicable standards of review are well
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
2 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 We conclude that the agency’s findings provide
4 substantial evidence to support the adverse credibility
5 determination. For asylum applications like Chen’s,
6 governed by the REAL ID Act of 2005, the agency may,
7 “[c]onsidering the totality of the circumstances,” base a
8 credibility determination on an asylum applicant’s demeanor,
9 the plausibility of his account, and inconsistencies in his
10 statements, “without regard to whether” they go “to the
11 heart of the applicant’s claim.” 8 U.S.C.
12 § 1158(b)(1)(B)(iii). We “defer therefore to [the agency’s]
13 credibility determination unless, from the totality of the
14 circumstances, it is plain that no reasonable fact-finder
15 could make such an adverse credibility ruling.” Xiu Xia Lin
16 v. Mukasey,
534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
17 The agency reasonably based its adverse credibility
18 determination on the inconsistencies between Chen’s credible
19 fear interview and statements he made in his asylum
20 application and at his hearing. A comparison shows
21 substantial discrepancies. Chen initially stated he fled
22 China because his girlfriend was forced to have an abortion,
23 but he applied for asylum based on that forced abortion and
3
1 alleged past persecution as a Falun Gong practitioner,
2 including an arrest, beating, and detention. He explained
3 that he failed to disclose his Falun Gong activities at the
4 interview because: (1) he only recounted the most recent
5 event; (2) “there [was not] enough time”; (3) he was told to
6 leave the interview before he could finish; and (4) he was
7 nervous. Given that Chen was asked during his interview
8 whether there was anything else that was important to his
9 claim, the agency was not required to credit these
10 explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81
11 (2d Cir. 2005) (holding that the agency need not credit an
12 applicant’s explanations for inconsistent testimony unless
13 those explanations would compel a reasonable fact-finder to
14 do so).1
15 Moreover, the agency reasonably relied on a further
16 inconsistency with respect to Chen’s arrest in China for
17 Falun Gong. Chen stated at his interview that he had never
18 been arrested for a serious crime, but stated in his asylum
1
Chen also claimed that he was beaten by U.S. border
patrol agents, and suggests that this played a role in
the omission of his Falun Gong activities at his initial
interview. However, as found by the agency, there is no
evidence to support this accusation, he did not mention
it in his credible fear interview, and he did not file a
complaint.
4
1 application and testimony that he had been arrested in China
2 for his Falun Gong activities. The agency reasonably
3 rejected Chen’s explanation that he forgot about the arrest
4 and he was nervous at the interview, particularly given his
5 ability to remember the seemingly less serious beating by
6 family planning authorities.
7 Finally, the agency based its adverse credibility
8 determination in part on Chen’s demeanor and responses,
9 finding that Chen’s answers were “non-responsive and
10 evasive,” and, when asked why he failed to mention Falun
11 Gong during credible fear interview, he was “hesitant and
12 vague.” We give “particular deference to credibility
13 determinations based on the adjudicator’s observation of the
14 applicant’s demeanor.” Shu Wen Sun v. BIA, 510 F.3d 377,
15 381 (2d Cir. 2007) (per curiam) (internal quotation marks
16 and citation omitted).
17 Having called Chen’s credibility into question, the
18 agency reasonably determined that his failure to corroborate
19 his girlfriend’s abortion and his Falun Gong activities
20 further undermined his asylum claim. See 8 U.S.C.
21 § 1158(b)(1)(B)(ii) (providing that “[t]he testimony of the
22 applicant may be sufficient to sustain the applicant’s
23 burden without corroboration, but only if the applicant
5
1 satisfies the trier of fact that the applicant’s testimony
2 is credible, is persuasive, and refers to specific facts
3 sufficient to demonstrate that the applicant is a refugee”
4 (emphasis added)). “An applicant’s failure to corroborate
5 [his] testimony may bear on credibility, because the absence
6 of corroboration in general makes an applicant unable to
7 rehabilitate testimony that has already been called into
8 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
9 Cir. 2007) (per curiam). It was reasonable for the agency
10 to reject Chen’s explanation that he had lost contact with
11 his former girlfriend, because he made no attempt to contact
12 her or at least did not describe any such attempt. See 8
13 U.S.C. § 1254(b)(4) (“No court shall reverse a determination
14 made by a trier of fact with respect to the availability of
15 corroborating evidence . . . [unless] a reasonable trier of
16 fact is compelled to conclude that such corroborating
17 evidence is unavailable.”). Moreover, as the agency noted,
18 the only corroborating evidence Chen submitted was a letter
19 from his mother, an interested witness who was not subject
20 to cross-examination. See Matter of H-L-H & Z-Y-Z, 25 I. &
21 N. Dec. 209, 215 (BIA 2010) (giving diminished evidentiary
22 weight to letters from relatives because they were
23 “interested witnesses who were not subject to cross-
6
1 examination”), rev’d on other grounds by Hui Lin Huang v.
2 Holder, 677 F.3d 130 (2d Cir. 2012); see also Xiao Ji Chen
3 v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006)
4 (holding weight accorded to applicant’s evidence lies
5 largely within agency discretion).
6 Given that Chen’s omission, inconsistencies, and lack
7 of corroboration all relate to the main bases of his asylum
8 claim, the totality of the circumstances supports the
9 adverse credibility determination. Because all of Chen’s
10 claims depend on the same factual predicate, the adverse
11 credibility determination is dispositive of asylum,
12 withholding of removal, and CAT relief. Paul v. Gonzales,
13
444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
Yang, 426 F.3d at
14 523.
15
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, the pending motion
18 for a stay of removal in this petition is DENIED as moot.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
7
