09-4881-ag
Chen v. Holder
BIA
Vomacka, IJ
A099 612 190
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 February, two thousand eleven.
PRESENT:
JON O. NEWMAN,
JOHN M. WALKER JR.,
REENA RAGGI,
Circuit Judges.
_______________________________________
JIAN HUA CHEN,
Petitioner,
v. 09-4881-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL; BOARD OF IMMIGRATION
APPEALS,
Respondents.
_______________________________________
FOR PETITIONER: Henry Zhang, Zhang and Associates,
P.C., New York, New York.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; James E. Grimes, Senior
Litigation Counsel; Gregory M.
Kelch, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Jian Hua Chen, a native and citizen of China, seeks
review of an October 28, 2009 order of the BIA affirming the
January 28, 2008 decision of Immigration Judge (“IJ”) Alan
A. Vomacka, denying her application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Jian Hua Chen, No. A099 612 190 (B.I.A. Oct.
28, 2009), aff’g No. A099 612 190 (Immig. Ct. N.Y. City
Jan. 28, 2008). 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 IJ’s and the BIA’s opinions for the sake of
completeness. See Jigme Wangchuck v. DHS, 448 F.3d 524, 528
(2d Cir. 2006). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu
2
Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
Substantial evidence supports the agency’s
determination that Chen failed to provide a credible claim
for asylum. First, we defer to the IJ’s finding that Chen’s
hesitant and unresponsive demeanor undermined her
credibility. See Majidi v. Gonzales, 430 F.3d 77, 81 n.1
(2d Cir. 2005); see also Shu Wen Sun v. Board of Immigration
Appeals, 510 F.3d 377, 380-81 (2d Cir. 2007). Second, the
IJ reasonably determined that Chen’s account of her arrival
to and exit from the Houston airport without encountering
immigration officials was implausible. See Siewe v.
Gonzales, 480 F.3d 160, 169 (2d Cir. 2007). Third, the IJ
reasonably discounted Chen’s testimony and that of her
supporting witness due to internal inconsistencies.
Finally, the IJ reasonably relied on Chen’s failure to
provide corroboration that she indicated was available to
support her questionable testimony. See Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Although the
IJ’s conclusion that Chen’s abortion might have been
voluntary was speculative, see Siewe, 480 F.3d at 167-68, no
remand is warranted because the burden of demonstrating such
past persecution rested on Chen and the totality of the
3
record amply supports the IJ’s finding that this claim was
not credible. See Xiao Ji Chen, 471 F.3d at 339 (explaining
that “[t]he overarching test for deeming a remand futile” is
whether the reviewing court can “confidently predict” that
the agency would reach the same decision absent the errors
that were made); see also 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
Xia Lin, 534 F.3d at 167.
Because Chen failed credibly to demonstrate her past
violation of China’s one-child policy, her claimed fear of
future persecution based upon a professed desire to have
additional children is too speculative to compel relief.
See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.
2005).
Chen’s inability to show the objective likelihood of
persecution needed to make out an asylum claim means she
necessarily failed to meet the higher standard required to
succeed on a claim for withholding of removal. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS,
947 F.2d 660, 665 (2d Cir. 1991). Finally, we deem any
challenge to the agency’s denial of Chen’s CAT claim waived
because Chen has not pursued that issue in her brief to this
court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
4
n.1, 545 n.7 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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