11-3781
Chen v. Holder
BIA
Mulligan, IJ
A098 997 257
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of March, two thousand fourteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 YANPING CHEN,
14 Petitioner,
15
16 v. 11-3781
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Feng Li, Moslemi and Associates, New
24 York, N.Y.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Paul Fiorino, Senior
28 Litigation Counsel; John M. McAdams,
29 Jr., Attorney; Office of Immigration
30 Litigation, Civil Division, 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 is
4 DENIED.
5 Petitioner Yanping Chen, a native and citizen of the
6 People’s Republic of China, seeks review of an August 30,
7 2011, decision of the BIA affirming the February 11, 2010,
8 decision of Immigration Judge (“IJ”) Thomas J. Mulligan
9 denying her application for asylum, withholding of removal and
10 relief under the Convention Against Torture (“CAT”). In re
11 Yanping Chen, No. A098 997 257 (B.I.A. Aug. 30, 2011), aff’g
12 No. A098 997 257 (Immig. Ct. N.Y. City Feb. 11, 2010). We
13 assume the parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v.
17 DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable
18 standards of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
20 162, 165-66 (2d Cir. 2008).
21 For asylum applications, governed by the REAL ID Act,
22 such as is the case here, the agency may, “[c]onsidering the
23 totality of the circumstances,” base a credibility finding on
2
1 an asylum applicant’s demeanor, the plausibility of his
2 account, and inconsistencies in his or his witness’s
3 statements, without regard to whether they go “to the heart of
4 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
5 also Xiu Xia Lin, 534 F.3d at 163-64.
6 Substantial evidence supports the agency’s determination
7 that Chen did not testify credibly. The IJ reasonably relied
8 on inconsistencies in the record. See 8 U.S.C.
9 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-
10 64, 166-67. As the agency noted, Chen’s testimony was
11 internally inconsistent regarding when and why she obtained
12 her notarial birth certificate and when she decided to leave
13 China. When confronted with the inconsistency between the
14 date of her passport and the date on which she obtained her
15 notarial birth certificate, Chen ultimately stated that she
16 could not remember why she obtained the notarial birth
17 certificate. The agency was not required to credit that
18 explanation as it was inconsistent with her testimony that she
19 did not decide to leave China until 2005 and contradicted her
20 prior explanation that she obtained the birth certificate in
21 2004 as instructed by the snakehead helping her leave China.
22 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
3
1 (finding that an agency need not credit an applicant’s
2 explanations unless those explanations would compel a
3 reasonable fact-finder to do so).
4 Further, in finding Chen not credible, the IJ reasonably
5 relied in part on her demeanor, noting that Chen was
6 frequently hesitant and tentative during her testimony.
7 Because the IJ was in the best position to observe Chen’s
8 manner while testifying, we afford this demeanor finding
9 particular deference. See Zhou Yun Zhang v. INS, 386 F.3d 66,
10 73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang
11 Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).
12 Given the inconsistencies in the record, and in light of
13 our deference to the agency’s findings regarding demeanor, the
14 agency’s adverse credibility determination is supported by
15 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see
16 also Xiu Xia Lin, 534 F.3d at 167 (explaining that this Court
17 “defer[s] to an IJ’s credibility determination unless, from
18 the totality of the circumstances, it is plain that no
19 reasonable fact-finder could make such an adverse credibility
20 ruling”). Accordingly, the agency did not err in denying
21 Chen’s application for asylum and withholding of removal, as
22 those claims were based on the same factual predicate. See
4
1 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Chen has
2 not challenged the denial of CAT relief.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
5