Filed: Jun. 30, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2416 Chen v. Lynch BIA Poczter, IJ A098 594 095 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: 14-2416 Chen v. Lynch BIA Poczter, IJ A098 594 095 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..
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14-2416
Chen v. Lynch
BIA
Poczter, IJ
A098 594 095
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
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 30th day of June, two thousand fifteen.
5
6 PRESENT:
7
8 JOHN M. WALKER, JR.,
9 BARRINGTON D. PARKER,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _____________________________________
13
14 BING JUN CHEN,
15 Petitioner,
16
17 v. 14-2416
18 NAC
19
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Joshua Bardavid, New York,
26 New York.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Acting
29 Assistant Attorney General; Claire
1 L. Workman, Senior Litigation
2 Counsel; Scott M. Marconda, Trial
3 Attorney, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 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 Bing Jun Chen, a native and citizen of the
13 People’s Republic of China, seeks review of a June 9, 2014,
14 decision of the BIA affirming a December 14, 2012, decision
15 of an Immigration Judge (“IJ”) denying Chen’s application
16 for asylum, withholding of removal, and relief under the
17 Convention Against Torture (“CAT”). In re Bing Jun Chen,
18 No. A098 594 095 (B.I.A. June 9, 2014), aff’g No. A098 594
19 095 (Immig. Ct. N.Y. City Dec. 14, 2012). We assume the
20 parties’ familiarity with the underlying facts and
21 procedural history in this case.
22 We have considered both the IJ’s and the BIA’s opinions
23 “for the sake of completeness.” Wangchuck v. DHS, 448 F.3d
24 524, 528 (2d Cir. 2006). The applicable standards of review
2
1 are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
2 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per
3 curiam).
4 For asylum applications like Chen’s, governed by the
5 REAL ID Act, the agency may, “[c]onsidering the totality of
6 the circumstances . . . base a credibility determination on
7 the demeanor, candor, or responsiveness of the applicant or
8 witness, the inherent plausibility of the applicant’s or
9 witness’s account,” and inconsistencies in an applicant’s
10 statements and other record evidence “without regard to
11 whether” they go “to the heart of the applicant’s claim.”
12 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-
13 64. Here, the IJ’s adverse credibility determination is
14 based on substantial evidence.
15 The IJ reasonably relied on Chen’s border interview in
16 finding him not credible. This Court requires the agency to
17 “closely examine each . . . interview before concluding that
18 it represents a sufficiently accurate record of the alien’s
19 statements . . . in determining whether the alien is
20 credible.” Ramsameachire v. Ashcroft,
357 F.3d 169, 179 (2d
21 Cir. 2004). Here, the record of Chen’s interview merely
3
1 summarizes his statements and does not provide a list of the
2 questions asked during the interview. However, an
3 interpreter was provided, and there is no indication from
4 the record of the interview that Chen had difficulties
5 understanding the interpreter. While the interview does not
6 indicate whether Chen was asked if he had any reason to fear
7 returning to China, he was asked why he entered the United
8 States. At this point, Chen stated that he came to seek
9 employment, not to seek refuge from persecution. Chen
10 testified that he was nervous during the interview, but an
11 applicant’s “mere recitation that he was nervous or felt
12 pressured during an airport interview will not automatically
13 prevent” the agency from relying on the interview for an
14 adverse credibility determination. Ming Zhang v. Holder,
15 585 F.3d 715, 725-26 (2d Cir. 2009). Under these
16 circumstances, the IJ reasonably relied on the border
17 interview.
18 Moreover, Chen’s statement that he came to seek work is
19 wholly inconsistent with his claim for asylum, in which he
20 insists that he came to the United States to flee
21 persecution. The IJ reasonably found that this
4
1 inconsistency casts doubt on the entirety of Chen’s claim
2 and raises the question of whether the claim is fabricated.
3 Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295
4 (2d Cir. 2006) (per curiam). This inconsistency, therefore,
5 is itself sufficient to justify the IJ’s adverse credibility
6 finding.
Id. The IJ also relied on more minor
7 inconsistencies between Chen and his wife’s testimony, which
8 are also supported by the record. Tu Lin v. Gonzales, 446
9 F.3d 395, 402 (2d Cir. 2006).
10 Chen argues that the IJ erred in failing to consider
11 whether his testimony was rehabilitated by the fine receipt
12 and medical records he submitted to corroborate his
13 detention, beating, and fine in China. This Court presumes
14 that “an IJ has taken into account all the evidence before
15 [her], unless the record compellingly suggests otherwise.”
16 Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 338
17 n.17 (2d Cir. 2006). Even assuming the IJ erred in failing
18 to explicitly consider the fine receipt and medical
19 evidence, remand would be futile in light of the serious
20 inconsistencies supporting the IJ’s adverse credibility
21 determination, inconsistencies that call into question the
5
1 veracity of Chen’s entire claim. Cao He Lin v. U.S. Dep’t
2 of Justice, 428 F.3d 391, 401 (2d Cir. 2005). In any event,
3 the IJ explicitly stated that she considered Chen’s
4 evidence.
5 Accordingly, the IJ’s adverse credibility determination
6 is based on substantial evidence. This adverse credibility
7 finding was sufficient to deny asylum, withholding of
8 removal, and CAT relief, as all three of Chen’s claims were
9 based on the same factual predicate. Paul v. Gonzales, 444
10 F.3d 148, 156-57 (2d Cir. 2006) (withholding); Xue Hong Yang
11 v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005)
12 (CAT).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19
20
21
6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
7
