Song Mei Chen v. Holder

10-3549 Chen v. Holder BIA Vomacka, IJ A089 915 688 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 28th day of October, two thousand fourteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 PIERRE N. LEVAL, 10 Circuit Judges. 11 12 _____________________________________ 13 14 SONG MEI CHEN, 15 Petitioner, 16 17 v. 10-3549 18 NAC 19 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Michael Brown, New York, New York. 26 27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 07162014-B1-1 1 General; Paul Fiorino, Senior 2 Litigation Counsel; Katherine A. 3 Smith, Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, D.C. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED. 12 Petitioner Song Mei Chen, a native and citizen of the 13 People’s Republic of China, seeks review of an August 25, 14 2010, decision of the BIA, affirming the December 18, 2009, 15 decision of Immigration Judge (“IJ”) Alan Vomacka, denying 16 her application for asylum, withholding of removal, and 17 relief under the Convention Against Torture (“CAT”). In re 18 Song Mei Chen, No. A089 915 688 (B.I.A. Aug. 25, 2010), 19 aff’g No. A089 915 688 (Immig. Ct. N.Y. City Dec. 18, 2009). 20 We assume the parties’ familiarity with the underlying facts 21 and procedural history of this case. 22 Under the circumstances of this case, we have reviewed 23 both the IJ’s and the BIA’s opinions “for the sake of 24 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 25 2008) (quotation marks and citations omitted). The 26 applicable standards of review are well established. See 07162014-B1-1 2 1 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey, 2 546 F.3d 138, 157-58 (2d Cir. 2008); Xiu Xia Lin v. Mukasey, 3 534 F.3d 162, 165-66 (2d Cir. 2008). 4 I. Past Persecution 5 The agency may, considering the totality of the 6 circumstances, base a credibility finding on inconsistencies 7 in an applicant’s statements and other record evidence 8 without regard to whether they go “to the heart of the 9 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 10 Lin, 534 F.3d at 163-64. Substantial evidence supports the 11 agency’s determination that Chen was not credible as to her 12 claim that family planning officials had forced her to 13 terminate a pregnancy. 14 Chen admitted that neither she nor her husband 15 mentioned her alleged forced abortion during her husband’s 16 removal proceedings, in which he sought asylum based on his 17 fear of persecution under China’s coercive population 18 control program. See Xiu Xia Lin, 534 F.3d at 166 n.3. 19 That omission was significant because, at the time of his 20 application, Chen’s husband would have qualified for asylum 21 based on Chen’s alleged forced abortion. See Shi Liang Lin 22 v. U.S. Dep’t of Justice, 494 F.3d 296, 299 (2d Cir. 2007). 07162014-B1-1 3 1 Chen did not provide a compelling explanation for this 2 omission. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 3 2005). 4 Having questioned Chen’s credibility, the agency 5 reasonably relied further on her failure to provide certain 6 evidence corroborating her claim or rehabilitating her 7 testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d 8 Cir. 2007). For example, the agency reasonably required 9 supporting testimony from Chen’s husband, as he had an 10 interest in the outcome of her proceedings. Her husband’s 11 immigration status did not prevent him from testifying. See 12 Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011). 13 Additionally, Chen’s abortion certificate did not 14 rehabilitate her claim that family planning officials used 15 force during her alleged procedure, see Xiao Xing Ni v. 16 Gonzales, 494 F.3d 260, 263 (2d Cir. 2007). The United 17 States Department of State has reported that “the only 18 document that might resemble [an abortion] certificate . . . 19 is a document issued by hospitals upon a patient’s request 20 after a voluntary abortion.” Bureau of Democracy, Human 21 Rights and Labor, U.S. Dep’t of State, China: Profile of 22 07162014-B1-1 4 1 Asylum Claims and Country Conditions 24 (Apr. 14, 1998), 2 quoted in Xiao Xing Ni, 494 F.3d at 263. 3 Given the inconsistency and corroboration findings, the 4 agency’s adverse credibility determination is supported by 5 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); 6 see also Xiu Xia Lin, 534 F.3d at 167. 7 II. Well-Founded Fear of Persecution 8 For largely the same reasons as this Court set forth in 9 Jian Hui Shao, 546 F.3d 138, we find no error in the 10 agency’s determination that Chen failed to demonstrate her 11 eligibility for relief based on her fear of future 12 persecution for her alleged violation of China’s population 13 control program. See id. at 158-72. The agency did not err 14 in giving diminished weight to a statement from Chen’s 15 father stating that family planning officials wanted to 16 sterilize and fine her because it was written by an 17 interested witness who was not subject to cross-examination. 18 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 19 341-42 (2d Cir. 2006); see also In re H-L-H- & Z-Y-Z-, 25 I. 20 & N. Dec. 209, 215 (BIA 2010) (giving diminished weight to 21 letters by interested witnesses not subject to cross- 07162014-B1-1 5 1 examination), abrogated on other grounds by Hui Lin Huang v. 2 Holder, 677 F.3d 130 (2d Cir. 2012). 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our review, any stay of 5 removal that the Court previously granted in this petition 6 is VACATED, and any pending motion for a stay of removal in 7 this petition is DISMISSED as moot. Any pending request for 8 oral argument in this petition is DENIED in accordance with 9 Federal Rule of Appellate Procedure 34(a)(2), and Second 10 Circuit Local Rule 34.1(b). 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14 07162014-B1-1 6