12-2819
Chen v. Holder
BIA
Mulligan, IJ
A089 224 970
A089 224 971
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
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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 7th day of November, two thousand thirteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
RALPH K. WINTER,
Circuit Judges.
_____________________________________
Zhenwu Chen, Yuehua Chen,
Petitioners,
v. 12-2819
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Joan Xie, New York, NY
FOR RESPONDENT: Stuart F. Delery, Principal Deputy
Assistant Attorney General, Anthony
C. Payne, Senior Litigation Counsel,
Jesse M. Bless, Trial 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.
Petitioners Zhenwu and Yuehua Chen, natives and
citizens of the People’s Republic of China, seek review of a
June 22, 2012, decision of the BIA affirming the January 20,
2011, decision of an Immigration Judge (“IJ”), which denied
their application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Zhenwu and Yuehua Chen, Nos. A089 224 970/971 (B.I.A. June
22, 2012), aff’g Nos. A089 224 970/971 (Immig. Ct. N.Y.C.
Jan. 20, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We review the IJ’s decision as modified by the BIA.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005); 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); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009). For applications
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such as Petitioners’, governed by the amendments to the
Immigration and Nationality Act by the REAL ID Act of 2005,
the agency may, “[c]onsidering the totality of the
circumstances . . . base a credibility determination on the
demeanor, candor, or responsiveness of the applicant[, and]
. . . the consistency of [the applicant’s] statements with
other evidence of record . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008) (per curiam).
Petitioners challenge the agency’s adverse credibility
determination, which was based on their poor demeanors,
inconsistencies between their testimonies, and insufficient
corroboration. As Petitioners do not allege that the
demeanor findings were based on a misstatement in the record
and the findings are supported by inconsistencies in the
testimony, we defer to the agency’s determination. See Li
Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
2006).
Moreover, the agency reasonably relied on the
inconsistencies between Petitioners’ testimony regarding
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their participation in and support of an underground church
in China and regarding the identities of those who were
arrested in the alleged raid on that church. See Xiu Xia
Lin, 534 F.3d at 166-67. The agency did not err in
declining to credit Yuehua’s explanations for these
inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005) (“A petitioner must do more than offer a
plausible explanation for his inconsistent statements to
secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.”
(emphasis retained) (citation and internal quotation marks
omitted)).
Finally, the agency reasonably concluded that
Petitioners failed to rehabilitate their testimony with
authenticated corroborative evidence. See Qin Wen Zheng v.
Gonzales, 500 F.3d 143, 148-49 (2d Cir. 2007) (holding that
the agency did not abuse its discretion in declining to
credit documents which had not been authenticated, where the
alien had already been found not credible).
Because Petitioners do not allege an independent
factual predicate for relief apart from the incredible
testimony, and because the only evidence of a threat to
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their lives or freedom depended on their credibility, the
adverse credibility determination in this case is
dispositive of asylum, withholding of removal, and CAT
relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
523 (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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