Filed: Feb. 23, 2018
Latest Update: Mar. 03, 2020
Summary: 16-3221 Chen v. Sessions BIA Vomacka, IJ A205 201 150 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: 16-3221 Chen v. Sessions BIA Vomacka, IJ A205 201 150 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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16-3221
Chen v. Sessions
BIA
Vomacka, IJ
A205 201 150
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 23rd day of February, two thousand
eighteen.
PRESENT:
RICHARD C. WESLEY,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
XUE ZHI CHEN,
Petitioner,
v. 16-3221
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, Law Office of Michael
Brown, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Nancy Friedman,
Senior Litigation Counsel; Gregory
A. Pennington, Jr., Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Xue Zhi Chen, a native and citizen of the
People’s Republic of China, seeks review of an August 24,
2016, decision of the BIA affirming a June 23, 2015, decision
of an Immigration Judge (“IJ”) denying Chen’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Xue Zhi Chen, No.
A205 201 150 (B.I.A. Aug. 24, 2016), aff’g No. A205 201 150
(Immig. Ct. N.Y. City June 23, 2015). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
F.3d 524, 528 (2d Cir. 2006). The applicable standards of
review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu
Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008)
(reviewing adverse credibility determinations under the
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substantial evidence standard); Pierre v. Holder, 588 F.3d
767, 772 (2d Cir. 2009) (reviewing constitutional claims de
novo).
Adverse Credibility Determination
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between
the applicant’s and witness’s written and oral
statements . . . , the internal consistency of each such
statement, [and] the consistency of such statements with
other evidence of record . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart
of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin, 534 F.3d at 163-64.
Although Chen argues that the agency erred in finding
him not credible as to his claim of religious persecution
in China, he does not challenge any of the specific
findings the agency ultimately relied on in making its
adverse credibility determination. See Yueqing Zhang v.
Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
(finding that petitioner abandons issues and claims not
3
raised in his brief). The unchallenged findings are
supported by the record and thus stand as a valid basis for
the adverse credibility determination. For example, at
times Chen gave the impression that he was testifying from
a script. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005)
(recognizing that particular deference is given to the
trier of fact’s assessment of demeanor). Chen’s evidence
was inconsistent regarding whether he came to the United
States to find work or escape persecution, whether he
sought care at a medical clinic after his release from
detention, and whether he had previously applied for a visa
to enter the United States. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Xiu Xia
Lin, 534 F.3d at
165-67 & n.3. Chen testified that confirmation is
important in his religion but he was unable to recall when
he was confirmed. See Wensheng Yan v. Mukasey,
509 F.3d
63, 66-67 (2d Cir. 2007) (recognizing that an adverse
credibility determination may be based on inherent
implausibility in the applicant’s story so long as the
implausibility “finding is tethered to record evidence”).
The agency’s adverse credibility determination was
dispositive of Chen’s claims for asylum, withholding of
4
removal, and CAT relief because all three were based on the
same factual predicate. See Paul v. Gonzales, 444 F.3d
148, 156-57 (2d Cir. 2006).
Due Process Claim
Chen argues that the IJ violated his due process rights
by prejudging his case and refusing to let his mother
testify. “To establish a violation of due process, an
alien must show that []he was denied a full and fair
opportunity to present h[is] claims or that [he was]
otherwise deprived . . . of fundamental fairness.” Burger
v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal
quotation marks omitted). The IJ provided Chen a full and
fair opportunity to present his claim without prejudging
credibility.
Because Chen admitted in his asylum application that he
had lied to U.S. immigration officials, the IJ proceeded
reasonably in warning counsel that Chen had a credibility
problem and should provide any available corroborating
evidence. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d
Cir. 2007) (“An IJ may, either expressly or impliedly, rely
on falsus in uno to discredit evidence that does not
benefit from corroboration or authentication independent of
the petitioner’s own credibility.”); cf. Zhi Wei Pang v.
5
BCIS, 448 F.3d 102, 111 (2d Cir. 2006) (noting the IJ’s
“obligation to help develop the record in immigration
proceedings”). The IJ also did not deprive Chen of an
opportunity to present his mother’s testimony because
neither Chen nor his attorney asked that she be permitted
to testify. On the record before us, Chen has not
demonstrated that the IJ deprived him a full and fair a
full and fair opportunity to present his case. His due
process claim fails. See
Burger, 498 F.3d at 134.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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