14-699
Chen v. Lynch
BIA
Poczter, IJ
A200 166 832
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 30th day of July, two thousand fifteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 LUO HUANG CHEN,
14 Petitioner,
15
16 v. 14-699
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,*
20
21 Respondent.
22 _____________________________________
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr. as Respondent.
1 FOR PETITIONER: Thomas V. Massucci, New York,
2 New York.
3
4 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
5 Attorney General; Linda S. Wernery,
6 Assistant Director; Gerald M.
7 Alexander, Trial Attorney, Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review is
15 GRANTED.
16 Petitioner Luo Huang Chen, a native and citizen of the
17 People’s Republic of China, seeks review of a February 4, 2014,
18 decision of the BIA affirming an April 9, 2012, decision of an
19 Immigration Judge (“IJ”) denying Chen’s application for asylum,
20 withholding of removal, and relief under the Convention Against
21 Torture (“CAT”). In re Luo Huang Chen, No. A200 166 832 (B.I.A.
22 Feb. 4, 2014), aff’g No. A200 166 832 (Immig. Ct. N.Y. City Apr.
23 9, 2012). We assume the parties’ familiarity with the
24 underlying facts and procedural history in this case.
25 Under the circumstances of this case, we review the IJ’s
26 decision as modified by the BIA, and consider only the single
2
1 basis on which the BIA affirmed the IJ’s adverse credibility
2 determination. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
3 F.3d 520, 522 (2d Cir. 2005). The applicable standards of
4 review are well established. See 8 U.S.C. § 1252(b)(4)(B); see
5 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
6 For asylum applications such as Chen’s, governed by the
7 REAL ID Act of 2005, the agency may, considering the totality
8 of the circumstances, base a credibility finding on an
9 applicant’s “demeanor, candor, or responsiveness,” the
10 plausibility of his account, and inconsistencies in his
11 statements, so long as they reasonably support an inference that
12 the applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii);
13 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
14 We defer “to an IJ’s credibility determination unless, from the
15 totality of the circumstances, it is plain that no reasonable
16 fact-finder could make such an adverse credibility ruling.”
17 Xiu Xia Lin, 534 F.3d at 167. In this case, the inconsistency
18 the IJ identified does not reasonably support an inference that
19 Chen was incredible.
3
1 The agency concluded that Chen was not credible because he
2 claimed that he fled China after his arrest in May 2010, but
3 the documentary evidence revealed prior departure plans – a
4 student visa application approved in March 2010. Although the
5 agency labeled this an inconsistency, there is no
6 contradiction: Chen never stated that the only reason he left
7 China was because he was arrested or that he had not considered
8 leaving China prior to his arrest. Moreover, he testified
9 consistently that his parents and an agent handled the student
10 visa application process, and that he was not involved. He
11 testified that it was not until June or July that he first talked
12 to the agent and received the letter of acceptance from the
13 American university. This testimony is consistent with the
14 certificate of eligibility for a student visa, which was signed
15 by a school official on March 31, 2010, but not signed by Chen
16 until June 1, 2010. That Chen’s parents began planning his
17 departure prior to his arrest does not, in and of itself,
18 undermine his claim that he was persecuted because of his
19 religion and fears persecution on return.
4
1 During cross-examination, Chen testified that neither he
2 nor his parents contacted the agent before his arrest. This
3 testimony conflicts with the date on the approved visa
4 application; but standing alone, it is not enough to support
5 an adverse credibility determination.
6 Because the case is being remanded, we do not consider
7 whether the BIA abused its discretion in denying Chen’s motion
8 to remand. See Koudriachova v. Gonzales, 490 F.3d 255, 264 (2d
9 Cir. 2007).
10 For the foregoing reasons, the petition for review is
11 GRANTED.
12 FOR THE COURT:
13 Catherine O=Hagan Wolfe, Clerk
5