09-1039-ag
Chen v. Holder
BIA
Videla, IJ
A099 533 620
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19th day of October, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 XIONG FENG CHEN, A.K.A. HIONG FENG CHEN,
14 Petitioner,
15
16 v. 09-1039-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; William C. Peachey,
28 Assistant Director; Eric W.
29 Marsteller, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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 Xiong Feng Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a February 13, 2009 order
7 of the BIA affirming the May 16, 2007 decision of
8 Immigration Judge (“IJ”) Gabriel C. Videla, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Xiong
11 Feng Chen, No. A099 533 620 (B.I.A. Feb. 13, 2009), aff’g
12 No. A099 533 620 (Immig. Ct. N.Y. City May 16, 2007). We
13 assume the parties’ familiarity with the underlying facts
14 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’s decision. See
17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
20 534 F.3d 162, 165-66 (2d Cir. 2008).
21 Chen articulated two separate bases for asylum in his
22 application for relief. The IJ found that Chen failed to
23 meet his burden of proof regarding his claim that he endured
2
1 past persecution based on his membership in a particular
2 social group. Additionally, the IJ found not credible
3 Chen’s alleged well-founded fear of persecution based on his
4 purported membership in the China Democracy Party (“CDP”).
5 We address each of the IJ’s findings in turn.
6 I. Past Persecution
7 We find no error in the IJ’s determination that Chen
8 did not experience past persecution on account of a
9 protected ground when he was arrested after he and his
10 father attempted to prevent authorities from taking their
11 land. See 8 U.S.C. § 1101(a)(42). Chen claimed that
12 Chinese officials beat him and detained him overnight on
13 account of his membership in the alleged social group of
14 “peasant farmers.” As we have held, not all applicants who
15 can point to membership in some group united by a shared
16 past experience will qualify for asylum. See Koudriachova
17 v. Gonzales, 490 F.3d 255, 261-62 (2d Cir. 2007). Rather,
18 the applicant’s status as a member of that group–and not
19 some other factor–must be a central reason why that
20 individual is targeted for persecution. See 8 U.S.C.
21 § 1158(b)(1)(B). Here, the IJ determined that “[t]he
22 government simply wanted the land to build the park” and
23 arrested Chen and his father because they were “trying to
3
1 oppose the measures that were being taken by authorities.”
2 We find no error in this determination. See Koudriachova,
3 490 F.3d at 261-62; see also Matter of J-B-N- & S-M-, 24 I.
4 & N. Dec. 208, 215 (BIA 2007).
5 II. Well-Founded Fear of Persecution
6 With respect to Chen’s alleged fear of future
7 persecution on account of his alleged CDP membership,
8 substantial evidence supports the agency’s adverse
9 credibility determination. See Xiu Xia Lin, 534 F.3d at
10 165-66; see also 8 U.S.C. § 1158(b)(1)(B)(iii).
11 We defer to the IJ’s determination that Chen’s demeanor
12 was not persuasive and that he appeared to have “memorized
13 certain information.” See Majidi v. Gonzales, 430 F.3d 77,
14 81 n.1 (2d Cir. 2005). The IJ also reasonably found that
15 Chen failed to testify consistently regarding when he joined
16 the CDP, and that he omitted from his testimony on direct
17 examination that police were aware of his CDP membership and
18 had repeatedly visited his home in China. These
19 discrepancies were valid bases for finding Chen not
20 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii). To the extent
21 Chen offered explanations, the IJ was not compelled to
22 credit them. See Majidi, 430 F.3d at 80-81.
4
1 Finally, given Chen’s already questionable testimony,
2 the IJ did not err in finding that his failure to provide
3 adequate corroboration further undermined his credibility.
4 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
5 Because Chen was thus unable to establish the requisite
6 well-founded fear of future persecution necessary for
7 asylum, it follows that he also failed to meet the higher
8 standard required for withholding of removal and CAT relief.
9 See Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006);
10 Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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