Filed: Dec. 10, 2019
Latest Update: Mar. 03, 2020
Summary: 17-2680 Chen v. Barr BIA Leeds, IJ A200 181 195 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 NOTATIO
Summary: 17-2680 Chen v. Barr BIA Leeds, IJ A200 181 195 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..
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17-2680
Chen v. Barr
BIA
Leeds, IJ
A200 181 195
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 10th day of December, two thousand nineteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XIAOFENG CHEN,
14 Petitioner,
15
16 v. 17-2680
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General, Civil Division,
27 United States Department of
28 Justice, Washington, DC; Linda S.
29 Wernery, Assistant Director,
30 William C. Minick, Trial Attorney,
31 Office of Immigration Litigation,
32 United States Department of
33 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 Xiaofeng Chen, a native and citizen of the
6 People’s Republic of China, seeks review of an August 3,
7 2017 decision of the BIA affirming a February 13, 2017
8 decision of an Immigration Judge (“IJ”) denying Chen’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re
11 Xiaofeng Chen, No. A 200 181 195 (B.I.A. Aug. 3, 2017),
12 aff’g No. A 200 181 195 (Immig. Ct. N.Y. City Feb. 13,
13 2017). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA. Yan Chen v.
17 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,
891 F.3d 67, 76
20 (2d Cir. 2018).
21
2
1 The governing REAL ID Act credibility standard provides
2 as follows:
3 Considering the totality of the circumstances, and
4 all relevant factors, a trier of fact may base a
5 credibility determination on the demeanor, candor,
6 or responsiveness of the applicant or witness, . .
7 . the consistency between the applicant’s or
8 witness’s written and oral statements . . . , the
9 internal consistency of each such statement, the
10 consistency of such statements with other evidence
11 of record . . . , and any inaccuracies or
12 falsehoods in such statements, . . . or any other
13 relevant factor.
14
15 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
16 credibility determination unless . . . it is plain that no
17 reasonable fact-finder could make such an adverse
18 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
19 167 (2d Cir. 2008); accord Hong Fei
Gao, 891 F.3d at 76.
20 Substantial evidence supports the agency’s adverse
21 credibility determination.
22 First, Chen has waived any challenge to the IJ’s
23 findings that (1) his testimony and medical records were
24 inconsistent, and (2) his uncle’s letter undermined his
25 credibility because its condition cast doubt on its
26 legitimacy. See Yueqing Zhang v. Gonzales,
426 F.3d 540,
27 541 n.1, 545 n.7 (2d Cir. 2005). Even if not waived,
3
1 however, these findings provide substantial support for the
2 adverse credibility determination. Chen’s testimony and the
3 hospital record were inconsistent regarding the number of
4 medications he was prescribed. And the agency reasonably
5 determined that a corroborating letter, purportedly mailed
6 by Chen’s uncle in China to Chen’s attorney in the United
7 States in an attached envelope, undermined his credibility
8 because the original document had no creases or fold marks
9 and therefore could not have been sent in the attached
10 envelope. See 8 U.S.C. § 1158(b)(1)(B)(iii); Siewe v.
11 Gonzales, 480 F.3d 160, 169-70 (2d Cir. 2007) (upholding
12 IJ’s rejection of document as inauthentic when petitioner
13 claimed that he did not present original because it was
14 creased but photocopy did not show crease marks.
15 Second, the IJ’s demeanor finding bolsters the adverse
16 credibility determination. See 8 U.S.C. §
17 1158(b)(1)(B)(iii) (allowing IJ to consider “demeanor,
18 candor, or responsiveness of the applicant”). We generally
19 “give particular deference” to adverse credibility
20 determinations “that are based on the adjudicator’s
21 observation of the applicant’s demeanor.” Li Hua Lin v.
4
1 U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
2 Moreover, the record reflects that Chen gave non-responsive
3 answers to questions regarding his practice of Falun Gong in
4 the United States and had to be asked multiple times whether
5 he practiced Falun Gong alone or in a group. See Tu Lin v.
6 Gonzales,
446 F.3d 395, 400 (2d Cir. 2006) (“Evasiveness is
7 . . . one of the many outward signs a fact-finder may
8 consider in evaluating demeanor and in making an assessment
9 of credibility.”).
10 Third, the IJ also reasonably concluded that Chen
11 failed to rehabilitate his credibility with reliable
12 corroborating evidence. See Biao Yang v. Gonzales,
496 F.3d
13 268, 273 (2d Cir. 2007) (“An applicant’s failure to
14 corroborate his or her testimony may bear on credibility,
15 because the absence of corroboration in general makes an
16 applicant unable to rehabilitate testimony that has already
17 been called into question.”). As previously discussed,
18 Chen’s medical records were inconsistent with his testimony
19 and the letter from his uncle was not reliable evidence.
20 Furthermore, the IJ reasonably faulted Chen for providing
21 limited evidence that he continues to practice Falun Gong in
5
1 the United States, particularly as Chen gave non-responsive
2 and conflicting answers when asked why he did not provide
3 updated photographs or offer a witness.
4 Finally, although the IJ misstated Chen’s testimony in
5 concluding that he was inconsistent regarding his travel to
6 the United States—the transcript reflects that Chen said he
7 spent a few days, not two days, in both Mexico and Guatemala
8 remand would be futile because we are confident that the
9 agency would reach the same result absent the error. See
10 Lianping Li v. Lynch, 839 F.3d 144, 149-50 (2d Cir. 2016).
11 Given the demeanor and corroboration findings, the
12 discrepancies between Chen’s testimony and medical records,
13 and the unreliable letter from his uncle, the totality of
14 the circumstances supports the adverse credibility
15 determination. See Xiu Xia
Lin, 534 F.3d at 167. Because
16 Chen’s claims were all based on the same factual predicate,
17 the adverse credibility determination is dispositive of
18 asylum, withholding of removal, and CAT relief. See Paul v.
19 Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
20
21
6
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions are DENIED and stays are
3 VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7
