13-1104
Chen v. Holder
BIA
Nelson, IJ
A094 798 807
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 14th day of August, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YINGYUE CHEN,
14 Petitioner,
15
16 v. 13-1104
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Steven M. Riker, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Anthony P. Nicastro, Senior
28 Litigation Counsel; Tracey N.
29 McDonald, Trial Attorney, Office of
30 Immigration Litigation, 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
4 is DENIED.
5 Yingyue Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a February 28, 2013,
7 decision of the BIA affirming an Immigration Judge’s (“IJ”)
8 January 6, 2011, decision, denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Yingyue Chen, No.
11 A094 798 807 (B.I.A. Feb. 28, 2013), aff’g No. A094 798 807
12 (Immig. Ct. N.Y. City Jan. 6, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as modified and supplemented by the
17 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
18 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268,
19 271 (2d Cir. 2005). The applicable standards of review are
20 well established. See 8 U.S.C. § 1252(b)(4)(B); see also
21 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
22
2
1 For applications such as Chen’s, governed by the REAL
2 ID Act of 2005, the agency may, “[c]onsidering the totality
3 of the circumstances,” base a credibility finding on the
4 applicant’s “demeanor, candor, or responsiveness,” the
5 plausibility of his account, and inconsistencies in his
6 statements, without regard to whether they go “to the heart
7 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
8 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
9 (per curiam). We “defer therefore to an IJ’s credibility
10 determination unless, from the totality of the
11 circumstances, it is plain that no reasonable fact-finder
12 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
13 Here, the IJ reasonably based the adverse credibility
14 determination on omissions in Chen’s testimony and
15 documentary evidence. Chen testified that he was able to
16 evade arrest by police who raided his unregistered church
17 because he was “near the door.” In his asylum application
18 statement, he did not mention his proximity to a door, only
19 that he fled. Yet, in an amended statement, he related that
20 he was initially near the front door but was pushed back to
21 the rear door. The agency incorrectly characterized Chen’s
22 accounts as inconsistent, given that he did not specify
3
1 which door he was near during his testimony and did not
2 mention his position at all in his original statement.
3 Nevertheless, the two initial statements omitted detail and
4 those omissions may be considered in assessing credibility.
5 See Xiu Xia Lin, 534 F.3d at 166 n.3 (explaining that “[a]n
6 inconsistency and omission are . . . functionally
7 equivalent”).
8 These omissions alone would not support the adverse
9 credibility determination, but for the major omission
10 related to the basis of Chen’s fear of future harm. Chen’s
11 mother’s letter failed to mention three police visits to her
12 home to which Chen testified as occurring following the
13 church raid. Although he explained that his mother gave
14 less detail because she thought the visits were less
15 important, the IJ reasonably rejected that explanation
16 because the visits were central to establishing a future
17 fear of persecution. See Majidi v. Gonzales, 430 F.3d 77,
18 80-81 (2d Cir. 2005). Nor was the IJ required to credit an
19 amended letter from Chen’s mother because she was an
20 interested witness, not subject to cross-examination, and
21 the letter was subject to more scrutiny because it was
22 created in response to the IJ’s decision pointing out
4
1 omissions in the first letter. See Xiao Ji Chen v. U.S.
2 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the
3 weight accorded to documentary evidence lies largely within
4 agency’s discretion); see also Matter of H-L-H- & Z-Y-Z-, 25
5 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished
6 evidentiary weight to letters from “relatives and friends,”
7 because they were from interested witnesses not subject to
8 cross-examination), rev’d on other grounds by Hui Lin Huang
9 v. Holder, 677 F.3d 130 (2d Cir. 2012).
10 Although Chen submitted additional corroborating
11 letters from his aunt and friends, the IJ reasonably found
12 that they did not rehabilitate his testimony because the
13 authors were interested parties not subject to cross-
14 examination. See Xiao Ji Chen, 471 F.3d at 342; see also
15 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
16 (holding that corroboration is needed to rehabilitate non-
17 credible testimony). It is not apparent whether the IJ
18 considered a summons for Chen’s aunt, for harboring Chen, or
19 an arrest warrant for his friend, based on her involvement
20 in an “evil cult,” but the record does not compel the
21 conclusion that the IJ did not consider them: the summons
22 and warrant did not pertain to Chen personally and did not
23 evidence the treatment of Christians, only abettors and cult
5
1 participants. See Wei Guang Wang v. BIA, 437 F.3d 270, 275
2 (2d Cir. 2006) (stating that IJs need not parse or refute
3 every piece of evidence if the findings are reasoned and
4 adequate). Moreover, the summons and warrant do not
5 contradict the IJ’s finding that there was no pattern or
6 practice of persecution of Christians in China, which was
7 reasonably based on a State Department report indicating
8 that the treatment of Christians varied by region. See Jian
9 Hui Shao v. Mukasey, 546 F.3d 138, 142, 149 (2d Cir. 2008)
10 (upholding finding of no pattern or practice of persecution
11 due to local variations of policy enforcement).
12 Because the omissions related to the single incident of
13 past harm and Chen’s fear of future persecution by the
14 Chinese government, and there was no convincing evidence to
15 rehabilitate that testimony, the totality of the
16 circumstances supports the agency’s adverse credibility
17 determination. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
18 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167. Because the
19 only evidence of a threat to Chen’s life or freedom depended
20 upon his credibility, the adverse credibility determination
21 necessarily precludes success on his claims for asylum,
22 withholding of removal, and CAT relief. See Paul v.
23 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
6
1 II. Due Process
2 An alien in removal proceedings is entitled to the due
3 process right of a full and fair opportunity to present his
4 claims. Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
5 2007). To establish a due process violation, an alien must
6 demonstrate both error and substantial prejudice. Miller v.
7 Mukasey, 539 F.3d 159, 164 (2d Cir. 2008). Here, there is
8 neither. Contrary to Chen’s argument, the IJ did not
9 prohibit him from testifying at the hearing on remand. His
10 counsel chose not to proffer his testimony because, as
11 counsel conceded, the testimony was not based on personal
12 experience and the IJ, in response to counsel’s request for
13 guidance, indicated that such hearsay evidence was not
14 necessary. Moreover, no prejudice resulted because the
15 record reflects that the IJ considered all the new evidence
16 of conditions in China, to which Chen intended to testify.
17 Accordingly, Chen has not established constitutional error.
18 See Burger, 498 F.3d at 134.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
23 this petition is DISMISSED as moot. Any pending request for
7
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
8