13-1547
Chen v. Holder
BIA
Sichel, IJ
A088 527 577
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 5th day of November, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 Chi Man Chen,
14 Petitioner,
15
16 v. 13-1547
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Alexander Kwok-Ho Yu, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Blair T. O’Connor,
27 Assistant Director; Juria L. Jones,
28 Trial Attorney, Office of
29 Immigration Litigation, United
1 States Department of Justice,
2 Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Chi Man Chen, a native and citizen of the People’s
9 Republic of China, seeks review of a March 26, 2013,
10 decision of the BIA affirming the November 23, 2010,
11 decision of Immigration Judge (“IJ”) Helen Sichel, which
12 denied his application for asylum, withholding of removal,
13 and relief under the Convention Against Torture (“CAT”). In
14 re Chi Man Chen, No. A088 527 577 (B.I.A. March 26, 2013),
15 aff’g No. A088 527 577 (Immig. Ct. N.Y. City November 23,
16 2010). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have
19 considered both the IJ’s and the BIA’s opinions “for the
20 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
21 (2d Cir. 2008). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
23 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
24
2
1 For asylum applications, like Chen’s, governed by the
2 REAL ID Act of 2005, the agency may, “[c]onsidering the
3 totality of the circumstances,” base a credibility finding
4 on an asylum applicant’s “demeanor, candor, or
5 responsiveness,” the plausibility of his account, and
6 inconsistencies in his statements, without regard to whether
7 they go “to the heart of the applicant’s claim,” so long as
8 they reasonably support an inference that the applicant is
9 not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
10 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer
11 . . . to an IJ’s credibility determination unless, from the
12 totality of the circumstances, it is plain that no
13 reasonable fact-finder could make such an adverse
14 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. In this
15 case, the agency reasonably based its adverse credibility
16 determination on Chen’s admission that he had been dishonest
17 about his employment, the contradictions in his testimony,
18 and the numerous inconsistencies between his testimony and
19 his asylum application.
20 The IJ found that Chen was not credible because he
21 failed to explain the discrepancies between: (1) his
22 testimony that he attempted to stop the forced sterilization
3
1 of his wife, a circumstance he failed to mention in his
2 asylum application (or in a subsequent affidavit making
3 corrections to the application); (2) his admission to the IJ
4 that he had falsely claimed to own a factory solely in order
5 to obtain a visa, and his earlier testimony during the
6 removal proceedings that actually he did own a factory; (3)
7 his testimony that his wife stayed in the hospital for a
8 week following the sterilization, and a letter from his wife
9 stating that he had taken her home on his bike the following
10 day; and (4) his testimony that a doctor was among those who
11 came to take his wife away for sterilization, and his
12 subsequent testimony (after being asked why he failed to
13 mention that fact on his asylum application) that no doctors
14 were among those who came to take his wife away. The IJ
15 also noted Chen's testimony that he maintained his
16 employment at a construction company owned by the town
17 government even after his alleged violation of the
18 population control policy and his resistence to
19 sterilization, and that his wife was able to remove her own
20 IUD by simply stretching out her hands.
21 Chen argues that the IJ's adverse credibility
22 determination was based on "impermissible speculation and
4
1 personal conjecture," and that the discrepancies between his
2 asylum application and testimony were the result of honest
3 mistakes or misunderstandings, not surreptitious motives.
4 However, there is no indication in the record that the
5 adverse credibility finding was based on impermissible
6 factors; and the agency need not credit an applicant’s
7 explanations for inconsistent testimony unless those
8 explanations would compel a reasonable fact-finder to do so.
9 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
10 The totality of the circumstances supports the agency’s
11 adverse credibility determination. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The
13 adverse credibility determination is dispositive.
14 Because the only evidence of a threat to Chen’s life or
15 freedom depended upon his credibility, the adverse
16 credibility finding necessarily precludes success on his
17 claims for asylum, withholding of removal, and CAT relief.
18 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
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
5
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
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