Filed: Apr. 03, 2018
Latest Update: Mar. 03, 2020
Summary: 16-2733 Chen v. Sessions BIA Poczter, IJ A206 281 800 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 N
Summary: 16-2733 Chen v. Sessions BIA Poczter, IJ A206 281 800 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..
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16-2733
Chen v. Sessions
BIA
Poczter, IJ
A206 281 800
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 3rd day of April, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 JOHN M. WALKER, JR.,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 QINGLAN CHEN,
14 Petitioner,
15
16 v. 16-2733
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Yee Ling Poon (and Deborah
24 Niedermeyer, on the brief), New
25 York, NY.
26
27 FOR RESPONDENT: Chad A. Readler, Acting
28 Assistant Attorney General; M.
29 Jocelyn Lopez Wright, Senior
30 Litigation Counsel; Sara J.
31 Bayram, Trial Attorney, Office
32 of Immigration Litigation,
33 United States Department of
34 Justice, Washington, DC.
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 petition for review
4 is DENIED.
5 Petitioner Qinglan Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a July 26, 2016,
7 decision of the BIA affirming a March 12, 2015, decision of
8 an Immigration Judge (“IJ”) denying Chen’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Qinglan Chen, No.
11 A206 281 800 (B.I.A. July 26, 2016), aff’g No. A206 281 800
12 (Immig. Ct. N.Y. City Mar. 12, 2015). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s decisions. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-
20 66 (2d Cir. 2008).
21 The governing REAL ID Act credibility standard provides
22 that the agency must “[c]onsider[] the totality of the
23 circumstances,” and may base a credibility finding on an
2
1 applicant’s “demeanor, candor, or responsiveness,” the
2 plausibility of her account, and inconsistencies in his or
3 her witness’s statements, “without regard to whether” they
4 go “to the heart of the applicant’s claim.” 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 n.2.
6 “We defer . . . to an IJ’s credibility determination unless
7 . . . it is plain that no reasonable fact-finder could make
8 such an adverse credibility ruling.” Xiu Xia Lin,
534 F.3d
9 at 167. For the reasons that follow, we conclude that
10 substantial evidence supports the agency’s finding that
11 Chen was not credible.
12 First, the agency reasonably relied on Chen’s
13 inconsistent testimony about how she and her witness, Qui,
14 prepared written statements in support of each other’s
15 asylum applications. See 8 U.S.C. § 1158(b)(1)(B)(iii).
16 Chen initially testified that she and Qui wrote the
17 statements together; however, Chen later testified that
18 they did not. Chen argues that this was an improper basis
19 because her statement in support of Qui’s application was
20 not in the record. However, the agency may rely on “any
21 inconsistency” and here relied on Chen’s inconsistent
22 testimony about the statements, not on the statements
23 themselves. See Xiu Xia
Lin, 534 F.3d at 167 (“[A]n IJ may
3
1 rely on any inconsistency . . . in making an adverse
2 credibility determination as long as the ‘totality of the
3 circumstances’ establishes that an asylum applicant is not
4 credible.”). The IJ also observed that Chen was hesitant
5 and nonresponsive when asked how the statements were
6 prepared. See Li Zu Guan v. INS, 453 F.3d 129, 140 (2d
7 Cir. 2006); see also Li Hua Lin v. U.S. Dep’t of Justice,
8
453 F.3d 99, 109 (2d Cir. 2006) (“We can be still more
9 confident in our review of observations about an
10 applicant’s demeanor where, as here, they are supported by
11 specific examples of inconsistent testimony.”).
12 Second, the agency reasonably found Chen and Qui’s
13 shared practice of Falun Gong implausible based on Qui’s
14 testimony and credit report. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii). Although Chen and Qui testified that
16 they had practiced Falun Gong together multiple times per
17 month in New York since 2014, Qui’s credit report reflected
18 no ties to New York and placed him in North Carolina during
19 the relevant period. Accordingly, contrary to Chen’s
20 position, the implausibility finding is “tethered to the
21 evidentiary record.” Siewe v. Gonzales,
480 F.3d 160, 168-
22 69 (2d Cir. 2007) (“[S]peculation that inheres in inference
23 is not ‘bald’ if the inference is made available to the
4
1 factfinder by record facts, or even a single fact, viewed
2 in the light of common sense and ordinary experience. So
3 long as an inferential leap is tethered to the evidentiary
4 record, we will accord deference to the finding.”).
5 Last, the agency reasonably found that Chen’s
6 corroborating evidence was insufficient to rehabilitate her
7 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273
8 (2d Cir. 2007) (“An applicant’s failure to corroborate his
9 or her testimony may bear on credibility, because the
10 absence of corroboration in general makes an applicant
11 unable to rehabilitate testimony that has already been
12 called into question.”). Chen argues that the agency was
13 required to give her an additional opportunity to obtain a
14 statement or testimony from her sister. The argument
15 misunderstands the agency’s decision. Although the agency
16 must identify missing evidence and solicit an explanation
17 for its absence before denying relief on corroboration
18 grounds, the same process is not required where an
19 applicant’s testimony has already been called into
20 question. Compare Biao
Yang, 496 F.3d at 273, with Chuilu
21 Liu v. Holder,
575 F.3d 193, 197, 198 n.5 (2d Cir. 2009).
22 Given the foregoing inconsistency, implausibility,
23 demeanor, and corroboration findings, we conclude that the
5
1 adverse credibility determination is supported by the
2 “totality of the circumstances.” Xiu Xia Lin, 534 F.3d at
3 167. The credibility determination is dispositive of
4 asylum, withholding of removal, and CAT relief because all
5 three claims are based on the same factual predicate. See
6 Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006). We
7 do not reach the agency’s alternative determination that
8 Chen’s asylum application was untimely. See INS v.
9 Bagamasbad,
429 U.S. 24, 25 (1976) (“As a general rule
10 courts and agencies are not required to make findings on
11 issues the decision of which is unnecessary to the results
12 they reach.”).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition
17 is DISMISSED as moot. Any pending request for oral argument
18 in this petition is DENIED in accordance with Federal Rule of
19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
20 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk of Court
6
