Filed: Apr. 27, 2015
Latest Update: Mar. 02, 2020
Summary: 13-3487 Chen v. Holder BIA Vomacka, IJ A087 970 516 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: 13-3487 Chen v. Holder BIA Vomacka, IJ A087 970 516 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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13-3487
Chen v. Holder
BIA
Vomacka, IJ
A087 970 516
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 Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 27th day of April, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 QIN CHEN,
14 Petitioner,
15
16 v. 13-3487
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New
25 York.
26
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Brianne Whelan Cohen,
3 Senior Litigation Counsel; Jonathan
4 Robbins, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner Qin Chen, a native and citizen of the People’s
14 Republic of China, seeks review of an August 29, 2013, decision
15 of the BIA, affirming the February 24, 2012, decision of an
16 Immigration Judge (“IJ”), denying her application for asylum,
17 withholding of removal, and relief under the Convention Against
18 Torture (“CAT”). In re Qin Chen, No. A087 970 516 (B.I.A. Aug.
19 29, 2013), aff’g No. A087 970 516 (Immig. Ct. N.Y. City Feb.
20 24, 2012). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 Because the BIA declined to reach the IJ’s pretermission
23 of Chen’s asylum application, we limit our review to the IJ’s
24 decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t
2
1 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Accordingly, we
2 address only the agency’s dispositive adverse credibility
3 determination. The applicable standards of review are well
4 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
5 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
6 For asylum applications like Chen’s, governed by the REAL
7 ID Act, the agency may, “[c]onsidering the totality of the
8 circumstances, . . . base a credibility determination on the
9 demeanor, candor, or responsiveness of the applicant or
10 witness, the inherent plausibility of the applicant’s or
11 witness’s account,” and inconsistencies in an applicant’s
12 statements and other record evidence “without regard to
13 whether” they go “to the heart of the applicant’s claim.”
14 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
Lin, 534 F.3d at
15 163-64. Here, the adverse credibility determination is
16 supported by substantial evidence.
17 As the IJ found, there are several inconsistencies among
18 Chen’s application, supporting documents, and testimony. Chen
19 gave inconsistent dates regarding when she started attending
20 church in New York (either in July 2009 or November 2009), gave
3
1 inconsistent descriptions of her church activities (that she
2 only attended services or that she took courses and helped out
3 in the church kitchen), and was unclear as to what days of the
4 week she attended services (Wednesdays or Sundays). The IJ
5 reasonably relied on these inconsistencies, as they cast doubt
6 on whether Chen is a practicing Christian and therefore calls
7 into question both her allegation of past harm and her fear of
8 future harm. See Xiu Xia Lin, 534 F.3d at 167; Zhou Yun Zhang
9 v. U.S. INS,
386 F.3d 66, 74 (2d Cir. 2004), overruled on other
10 grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296
11 (2d Cir. 2007). The IJ was not required to credit Chen’s
12 explanations—that she did not register as a church member until
13 November 2009 but started attending in July 2009, forgot to
14 mention her work in the church kitchen, and attended church only
15 once or twice on Sundays. Majidi v. Gonzales,
430 F.3d 77, 80
16 (2d Cir. 2005) (deferring to IJ’s rejection of explanations
17 unless explanation would compel a reasonable fact finder to
18 accept testimony as credible).
19 As the IJ found, Chen’s credibility was further undermined
20 by her implausible testimony that she did not know whether her
4
1 husband of two years was a Christian and that she fled China
2 on a passport in her own name. These implausibility findings
3 are supported by the record, given Chen’s testimony that she
4 fled China to avoid religious persecution and regularly
5 attended church, as well as her testimony that she was under
6 “endless surveillance” in China. See Ming Xia Chen v. BIA, 435
7 F.3d 141, 145 (2d Cir. 2006) (holding that this Court upholds
8 implausibility finding unless it has a “definite and firm
9 conviction that a mistake has been committed” (internal
10 quotation marks and citation omitted)).
11 Nor did the IJ err in relying on problems with Chen’s
12 corroboration. It was reasonable for the IJ to conclude that
13 the letter from Chen’s underground church was likely
14 fabricated. It was printed on letterhead with a seal, even
15 though Chen testified that the church was unofficial and had
16 no fixed location, to remain hidden from Chinese authorities.
17 Wengsheng Yan v. Mukasey,
509 F.3d 63, 67 (2d Cir. 2007) (per
18 curiam). Moreover, the letter was obtained by Chen’s parents,
19 and Chen did not know how they obtained it. Xiao Ji Chen v.
20 U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006) (holding
5
1 that weight given to evidence is largely within agency’s
2 discretion).
3 In light of the inconsistencies and implausibilities
4 discussed above, the “totality of the circumstances” supports
5 the IJ’s adverse credibility determination. Xiu Xia Lin, 534
6 F.3d at 167. This finding was sufficient to deny asylum,
7 withholding of removal, and CAT relief, as all three forms of
8 relief relied on the same factual predicate. See Paul v.
9 Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang,
426
10 F.3d at 523. Because the adverse credibility determination is
11 dispositive, we do not consider Chen’s additional arguments.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DENIED as moot. Any pending request for oral argument in
17 this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O=Hagan Wolfe, Clerk
6
