12-3275
Chen v. Holder
BIA
Christensen, IJ
A087 980 894
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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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
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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 11th day of June, two thousand fourteen.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
CAI HUA CHEN,
Petitioner,
v. 12-3275
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Ramesh K. Shrestha, New York,
New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Paul Fiorino, Senior
Litigation Counsel; Andrew B. Insenga,
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.
Cai Hua Chen, a native and citizen of the People’s
Republic of China, seeks review of a July 24, 2012 order of
the BIA affirming the February 4, 2011 decision of Immigration
Judge (“IJ”) Jesse B. Christensen, which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). See In re Cai
Hua Chen, No. A087 980 894 (B.I.A. July 24, 2012), aff’g No.
A087 980 894 (Immig. Ct. N.Y. City Feb. 4, 2011). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented and 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); see also
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For applications such as Chen’s, governed by the REAL ID
Act of 2005, the agency may, “[c]onsidering the totality of
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the circumstances,” base a credibility finding on the
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of her account, and inconsistencies in her
statements, without regard to whether they go “to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We
“defer to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable
fact-finder could make” such a ruling. Xiu Xia Lin, 534 F.3d
at 167.
As a preliminary matter, the BIA did not err in denying
asylum based on the IJ’s adverse credibility determination.
Although the BIA may not make findings of fact, 8 C.F.R.
§ 1003.1(d)(3)(iv), here, it relied only on the IJ’s findings
that Chen lacked credibility and did not independently
corroborate her testimony to determine that she failed to
establish her eligibility for asylum, see id. § 1208.13(a).
Moreover, the adverse credibility determination is
supported by substantial evidence. The agency reasonably
based its credibility finding on the inconsistency between
Chen’s testimony that she hid in her sister’s home after she
removed her intrauterine device in October 2004 and her
application statement that she hid there after discovering her
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second pregnancy in January 2005. See 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at
167 (providing that an IJ may support an adverse credibility
determination with “any inconsistency”). The IJ reasonably
rejected Chen’s explanation that she did not prepare her
application with detail, given that her application clearly
states that she hid in her sister’s home to evade detection of
her second pregnancy. See Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005).
The adverse credibility determination is also supported
by the IJ’s observation that Chen was evasive and hesitant
while testifying to how she hired a smuggler and the age of
her eldest son. See Li Hua Lin v. U.S. Dep’t of Justice, 453
F.3d 99, 109 (2d Cir. 2006) (upholding a negative demeanor
finding when supported by specific instances of inconsistent
testimony). Although Chen argues that her delay in stating
her son’s age was due to difficulty converting dates from the
Chinese to the U.S. calendar, the IJ was not required to
credit this explanation as the record indicates that it was
the IJ who, with the aid of the interpreter, converted the
age. See Majidi, 430 F.3d at 80-81.
Chen also argues that the BIA erroneously required her to
provide corroborating documents from her persecutor by finding
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that the sterilization document did not rehabilitate her
testimony. To the contrary, the BIA relied on the lack of
corroboration only to affirm the IJ’s determination that
Chen’s non-credible testimony and documentary evidence did not
satisfy her burden of proof. Chen’s failure to submit
independent, reliable corroborating evidence made her unable
to rehabilitate her testimony. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 341 (2d Cir. 2006).
Given the inconsistent dates and Chen’s problematic
demeanor, the totality of the circumstances supports the
agency’s adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because
the only evidence of a threat to Chen’s life or freedom based
on her violation of China’s family planning policy depended
upon her credibility, the adverse credibility determination in
this case necessarily precludes all forms of relief. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
Chen additionally argues that she established her
eligibility for relief from removal because she would be
arrested, detained, and harmed based on her illegal departure
from China. However, prosecution for illegal departure does
not constitute persecution absent evidence that prosecuting
authorities have a motive other than law enforcement, which
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Chen did not allege. See Saleh v. U.S. Dep’t of Justice, 962
F.2d 234, 239 (2d Cir. 1992). Nor did Chen submit
particularized evidence that she would be intentionally
tortured. See Pierre v. Gonzales, 502 F.3d 109, 121 (2d Cir.
2007); Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,
157-60 (2d Cir. 2005). Accordingly, the agency did not err in
denying relief based on Chen’s illegal departure. See 8
U.S.C. § 1158(b); 8 C.F.R. §§ 1208.16(b)-(c), 1208.17(a).
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 of Court
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