09-1775-ag
Chen v. Holder
BIA
Abrams, IJ
A094 041 964
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2 nd day of June, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_______________________________________
YING CHEN,
Petitioner,
v. 09-1775-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; John S.
Hogan, Senior Litigation Counsel;
Kiley L. Kane, 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.
Ying Chen, a native and citizen of the People’s
Republic of China, seeks review of a March 26, 2009, order
of the BIA, affirming the August 29, 2007, decision of
Immigration Judge (“IJ”) Steven R. Abrams, which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Ying
Chen, No. A094 041 964 (B.I.A. Mar. 26, 2009), aff’g No.
A094 041 964 (Immig. Ct. N.Y. City Aug. 29, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review both
the BIA’s and the IJ’s decisions. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). The applicable standards
of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,
95 (2d Cir. 2008).
Substantial evidence supports the agency’s adverse
credibility determination. See Corovic, 519 F.3d at 95.
That determination was reasonably based on: (1) Chen’s
demeanor; (2) inconsistencies between Chen’s claim that she
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suffered a forced abortion in China and a document in the
record that indicates that her pregnancy in the United
States was her first; (3) the omission from Chen’s asylum
application and supporting documents of any allegation that
her sister, as Chen testified, was forcibly sterilized; and
(4) the questionable authenticity of Chen’s mother’s
sterilization certificate. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Moreover, the agency did not err in
declining to credit the explanations Chen offered for these
discrepancies. Majidi v. Gonzales, 430 F.3d 77, 81 (2d.
Cir. 2005).
Because the only evidence of a threat to Chen’s life or
freedom depended on her credibility, the agency’s adverse
credibility determination was fatal to her application for
asylum, withholding of removal, and CAT relief. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wu Biao Chen v.
INS, 344 F.3d 272, 275 (2d Cir. 2003). Although Chen
claimed before the agency that she feared forcible
sterilization should she be returned to China based on the
birth of her child in the United States, she does not
challenge the BIA’s denial of that claim before this Court.
Nor does she advance any argument based on her alleged
illegal departure from China.
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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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