13-38
Chen v. Holder
BIA
Zagzoug, IJ
A200 699 992
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 3rd day of June, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 SHUN YING CHEN,
14 Petitioner,
15
16 v. 13-38
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Briana F. Isiminger, Law Offices of
24 Yu & Associates, PLLC, New York, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Linda S. Wernery, Assistant
29 Director; Theodore C. Hirt, Senior
30 Litigation Counsel, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 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 Petitioner Shun Ying Chen, a native and citizen of
6 China, seeks review of a December 13, 2012, decision of the
7 BIA affirming an August 1, 2011, decision of Immigration
8 Judge (“IJ”) Randa Zagzoug, denying Chen’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Shun Ying Chen,
11 No. A200 699 992 (B.I.A. Dec. 13, 2012), aff’g No. A200 699
12 992 (Immig. Ct. N.Y. City Aug. 1, 2011). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Wala v.
17 Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). The applicable
18 standards of review are well-established. See 8 U.S.C.
19 § 1252(b)(4); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
20 (2d Cir. 2008).
21 For applications like this one, governed by the REAL ID
22 Act of 2005, the agency may base a credibility finding on an
23 asylum applicant’s demeanor, the plausibility of her
2
1 account, and inconsistencies in her statements, without
2 regard to whether they go “to the heart of the applicant’s
3 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Matter of J–Y–C–, 24
4 I. & N. Dec. 260, 265 (B.I.A. 2007). Analyzed under these
5 standards, the agency’s adverse credibility determination is
6 supported by substantial evidence.
7 Contrary to Chen’s argument, a negative demeanor
8 finding can properly be based on vague and unresponsive
9 testimony. See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d
10 Cir. 2006) (explaining that evasiveness is “one of the many
11 outward signs a fact-finder may consider in evaluating
12 demeanor and in making an assessment of credibility”);
13 Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005)
14 (noting that the IJ’s assessment of a petitioner’s demeanor
15 included his unresponsive testimony). Moreover, the Court
16 gives “particular deference” to an IJ’s demeanor finding,
17 see Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d
18 Cir. 2005) (internal quotation marks omitted), especially
19 when, as here, the IJ’s assessment is supported by “specific
20 examples of inconsistent testimony.” Li Hua Lin v. U.S.
21 Dep't of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
22 The record supports the IJ’s negative demeanor finding based
23 on Chen’s varying testimony as to when her wedding banquet
24 was held.
3
1 Although Chen now argues that any inconsistency was due
2 to her “low IQ,” and inability to calculate dates, she did
3 not raise these arguments before the agency, and we decline
4 to consider them. See Lin Zhong v. U.S. Dep’t of Justice,
5 480 F.3d 104, 107 n.1 (2d Cir. 2007). Further, the agency
6 was not required to credit Chen’s explanation that her
7 testimony was mistaken due to her lack of education. See
8 Majidi, 430 F.3d at 80-81 (holding that the agency need not
9 credit an applicant’s explanations unless those explanations
10 would compel a reasonable fact-finder to do so).
11 The agency also reasonably relied on Chen’s
12 inconsistent testimony as to when she received a village
13 committee certificate indicating that she had an
14 intrauterine device (“IUD”) and when the IUD was removed.
15 Chen has not reconciled these inconsistencies or provided a
16 compelling explanation for them. See id.
17 Chen has not contested the BIA’s finding that she
18 failed to corroborate her claim, or the IJ’s finding that
19 she failed to explain why the receipt for the fine she
20 allegedly paid for violating family planning policies
21 indicated that she had paid a “social alimony fee,” and,
22 thus, these findings provide further support for the adverse
23 credibility determination. See Shunfu Li v. Mukasey, 529
4
1 F.3d 141, 146-47 (2d Cir. 2008). Accordingly, the agency’s
2 adverse credibility determination is supported by
3 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);
4 Xiu Xia Lin, 534 F.3d at 167.
5 Having reasonably found that Chen failed to establish
6 eligibility for asylum on credibility grounds, the agency
7 did not err in denying withholding of removal and relief
8 under the CAT, as these claims share the same factual
9 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
10 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
11 520, 523 (2d Cir. 2005).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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