Filed: Feb. 23, 2017
Latest Update: Mar. 03, 2020
Summary: 15-649 Chen v. Sessions BIA Vomacka, IJ A200 933 596 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 NO
Summary: 15-649 Chen v. Sessions BIA Vomacka, IJ A200 933 596 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..
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15-649
Chen v. Sessions
BIA
Vomacka, IJ
A200 933 596
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 23rd day of February, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 YONG CHEN,
14 Petitioner,
15
16 v. 15-649
17 NAC
18 JEFF SESSIONS, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.1
21 _____________________________________
22
23 FOR PETITIONER: Farah Loftus, Los Angeles, CA.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Anthony
27 C. Payne, Assistant Director; Raya
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jeff Sessions is automatically substituted for former
Attorney General Loretta E. Lynch as Respondent.
1 Jarawan, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED IN PART and DISMISSED IN PART.
10 Petitioner Yong Chen, a native and citizen of the People’s
11 Republic of China, seeks review of a February 9, 2015, decision
12 of the BIA, affirming a May 7, 2013, decision of an Immigration
13 Judge (“IJ”) denying Chen’s application for asylum, withholding
14 of removal, and relief under the Convention Against Torture
15 (“CAT”). In re Yong Chen, No. A200 933 596 (B.I.A. Feb. 9,
16 2015), aff’g No. A200 933 596 (Immig. Ct. N.Y. City May 7, 2013).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we review both the
20 IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d
21 391, 394 (2d Cir. 2005). The applicable standards of review
22 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
23 v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
2
1 I. CAT Relief
2 Initially, we note that we lack jurisdiction to consider
3 Chen’s challenges to the denial of CAT relief: Chen did not
4 specifically contest the denial of CAT relief before the BIA,
5 and the BIA did not excuse his failure to exhaust. See Karaj
6 v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006); Xian Tuan Ye v.
7 Dep’t of Homeland Sec.,
446 F.3d 289, 296-97 (2d Cir. 2006).
8 We therefore dismiss the petition for lack of jurisdiction as
9 it relates to the denial of CAT relief.
10 II. Asylum & Withholding of Removal
11 For asylum applications like Chen’s, governed by the REAL
12 ID Act, the agency may, “[c]onsidering the totality of the
13 circumstances,” base a credibility finding on an asylum
14 applicant’s “demeanor, candor, or responsiveness,” the
15 plausibility of his account, and inconsistencies in his or his
16 witness’s statements, “without regard to whether” they go “to
17 the heart of the applicant’s claim.” 8 U.S.C.
18 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163 n.2. “We
19 defer . . . to an IJ’s credibility determination unless, from
20 the totality of the circumstances, it is plain that no
21 reasonable fact-finder could make such an adverse credibility
3
1 ruling.” Xiu Xia Lin, 534 F.3d at 167. As discussed below,
2 substantial evidence supports the adverse credibility
3 determination.
4 The adverse credibility determination was properly based
5 on the implausibility of Chen’s account concerning his first
6 attempt to travel to the United States. Chen also omitted this
7 trip from his original application. “[I]n assessing the
8 credibility of an asylum applicant’s testimony, an IJ is
9 entitled to consider whether the applicant’s story is
10 inherently implausible.” Wensheng Yan v. Mukasey,
509 F.3d 63,
11 66 (2d Cir. 2007). Such a finding cannot be based on “bald
12 speculation or caprice.” Zhou Yun Zhang v. INS,
386 F.3d 66,
13 74 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin
14 v. U.S. Dep’t of Justice,
494 F.3d 296 (2d Cir. 2007) (en banc).
15 But one that is based on “speculation that inheres in inference
16 is not ‘bald’ if the inference is made available to the
17 factfinder by record facts, or even a single fact, viewed in
18 the light of common sense and ordinary experience.” Siewe v.
19 Gonzales,
480 F.3d 160, 168-69 (2d Cir. 2007). Here, common
20 sense supports the IJ’s inference: it strains credulity that
21 Chen would leave China for a six-week period quite soon after
4
1 he began attending house church services, yet never indicate
2 that he left because he feared persecution or wanted to practice
3 Christianity more freely in the United States. It also strains
4 credulity that Chen would omit this trip from his original
5 application’s description of his practice of Christianity in
6 China, given that he accompanied a fellow underground church
7 member, and the trip falls squarely within the timeline of
8 relevant events (i.e., one month after he joined the house
9 church and two months before his arrest at the house church
10 gathering).
11 The agency also reasonably rested its credibility
12 determination on the inconsistency concerning who introduced
13 Chen to Christianity. Both Chen’s application and his father’s
14 letter asserted that Ye Dahaun, Chen’s coworker, introduced
15 Chen to Christianity. Chen testified, however, that another
16 co-worker, Ye Qiang, also introduced him to Christianity. When
17 asked why neither his application nor his father’s letter
18 mentioned Ye Qiang, Chen responded that Ye Qiang had passed away
19 and that he just did not want to mention him. The agency did
20 not err in rejecting this explanation. See Majidi v. Gonzales,
21 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner ‘must do more than
5
1 offer a “plausible” explanation for his inconsistent statements
2 to secure relief; “he must demonstrate that a reasonable
3 fact-finder would be compelled to credit his testimony.” ’ ”
4 (quoting Zhou Yun Zhang, 386 F.3d at 76)).
5 The agency also reasonably relied on the inconsistency
6 between Chen’s testimony and evidence concerning Chen’s church
7 attendance in the United States. Chen testified that he
8 attended church services every Sunday. To corroborate his
9 church attendance, Chen submitted two letters from his second
10 U.S. church. The first letter stated that Chen attended Sunday
11 Service regularly from September 2010 to January 2011. The
12 second letter, however, stated that Chen attended Sunday
13 Service occasionally from January 2011 to February 2013. When
14 confronted with this decrease in attendance, Chen explained
15 that although he attended church every Sunday, he would
16 occasionally arrive late, and was therefore not processed in
17 the system. The IJ reasonably rejected this explanation as
18 unconvincing, and found it suspect that Chen’s church
19 attendance appeared more devoted at the beginning of the asylum
20 process.
6
1 Having questioned Chen’s credibility, the agency
2 reasonably relied on his failure to corroborate. See Biao Yang
3 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (observing that
4 an applicant’s failure to corroborate testimony may bear on
5 credibility, either because the absence of particular evidence
6 is viewed as suspicious, or because the absence of corroboration
7 in general makes an applicant unable to rehabilitate testimony
8 already called into question). The agency correctly observed
9 that Chen had not submitted any documentary evidence to
10 corroborate his arrest and detention in China. Although Chen
11 testified that his father received a receipt for paying the
12 10,000 RMB fine, but that he just somehow lost it, the IJ
13 reasonably found implausible that his father would have lost
14 that receipt but managed to retain and send to Chen far less
15 relevant documentary evidence. See 8 U.S.C. § 1252(b)(4)(D);
16 Kyaw Zwar Tun v. U.S. Immigration & Naturalization Serv., 445
17 F.3d 554, 563 (2d Cir. 2006). Chen also submitted no evidence
18 to corroborate his church attendance in the United States for
19 the first six months after his arrival and could not recall the
20 name of the pastor of his first United States church.
7
1 Given the inconsistencies identified, as well as Chen’s
2 failure to corroborate, it cannot be said “that no reasonable
3 fact-finder could make such an adverse credibility ruling.”
4 Xiu Xia Lin, 534 F.3d at 167. Because claims for asylum and
5 withholding of removal were based on the same factual predicate,
6 the adverse credibility determination is dispositive of both
7 claims. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
8 We therefore deny Chen’s petition as it relates to the denials
9 of asylum and withholding of removal.
10 For the foregoing reasons, the petition for review is
11 DENIED IN PART and DISMISSED IN PART. As we have completed our
12 review, any stay of removal that the Court previously granted
13 in this petition is VACATED, and any pending motion for a stay
14 of removal in this petition is DISMISSED as moot. Any pending
15 request for oral argument in this petition is DENIED in
16 accordance with Federal Rule of Appellate Procedure 34(a)(2),
17 and Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
8
