13-2865
Chen v. Lynch
BIA
Christensen, IJ
A094 797 002
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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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 12th day of April, two thousand sixteen.
PRESENT:
RALPH K. WINTER,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
_____________________________________
GUIMO CHEN,
Petitioner,
v. 13-2865
NAC
LORETTA E.LYNCH1, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lewis G. Hu, Law Offices of Lewis
Hu, New York, NY.
1
Loretta E. Lynch is automatically substituted as the
respondent in this case pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Russell J.E. Verby, Senior
Litigation Counsel; John D.
Williams, 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.
Petitioner Guimo Chen, a native and citizen of China,
seeks review of a July 16, 2013, order of the BIA, affirming
the October 27, 2011, decision of an Immigration Judge
(“IJ”), which denied asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Guimo Chen, No. A094 797 002 (B.I.A. July 17, 2013), aff’g
No. A094 797 002 (Immig. Ct. New York City Oct. 27, 2011).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have
considered both the IJ’s and the BIA’s opinions “for the
sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
(2d Cir. 2008)(citation omitted). The applicable standards
of review are well established. See 8 U.S.C. §
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1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009).
For applications such as Chen’s, which are governed by
the REAL ID Act, the agency may base a credibility finding
on an applicant’s demeanor, the plausibility of his account,
and inconsistencies in his statements, without regard to
whether they go “to the heart of the applicant’s claim.” 8
U.S.C. § 1158(b)(1)(B)(iii). 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 an adverse credibility ruling.” Xiu Xia Lin
v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Here, the
agency reasonably based its adverse credibility
determination on Chen’s inconsistent and implausible
testimony.
First, the agency reasonably found Chen not credible
based on the inconsistency between his amended asylum
application and testimony that he had been physically
restrained by family planning authorities, and the omission
of that information from his original asylum application.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
166 n.3 (stating that an “inconsistency and an omission are
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. . . functionally equivalent”). At the hearing and in his
amended application, Chen claimed that he was physically
mistreated by family planning officers after he attempted to
prevent the sterilization of his wife. His original
application made no such allegation, simply stating instead
that he argued with officials during his wife’s
sterilization procedure.
The IJ reasonably found implausible Chen’s explanation
that he left the physical mistreatment claim out of his
original application because his attorney did not ask him
about his personal experience, and did not err in relying on
that finding to support the adverse credibility
determination. See Siewe v. Gonzales, 480 F.3d 160, 168-69
(2d Cir. 2007) (finding that while “bald” speculation is an
impermissible basis for an adverse credibility finding,
“[t]he speculation that inheres in inference is not ‘bald’
if the inference is made available to the factfinder by
record facts, or even a single fact, viewed in the light of
common sense and ordinary experience”); Majidi v. Gonzales,
430 F.3d 77, 80 (2d Cir. 2005) (A petitioner “must do more
than offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a
4
reasonable fact-finder would be compelled to credit his
testimony.”) (emphasis original, internal quotations and
citation omitted).
Further, the IJ reasonably found the change in Chen’s
story suspect given that it occurred after this Court’s
decision in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d
296 (2d Cir. 2007), which held that an alien could not
qualify as a refugee based only on the forced sterilization
of his spouse, and must show an individualized well-founded
fear of persecution or demonstrate “other resistance” to a
coercive population control program. Id. at 309-10. Chen’s
argument on appeal that he “had to amend his application”
based on new case law is unavailing, as it remains
implausible that he would have completely omitted
allegations of a beating by family planning officials in his
original application.
Further, the IJ reasonably found Chen not credible
based on his inconsistent testimony about whether he entered
the operating room during his wife’s sterilization
procedure. For example, on direct examination, Chen stated
that he entered the operating room and attempted to grab the
doctor’s hand; on cross-examination, he stated that he never
entered the operating room.
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A totality of the circumstances supports the agency’s
adverse credibility determination based on Chen’s
inconsistent and implausible testimony, and this Court
defers to that finding. See 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin, 534 F.3d at 167. Furthermore, because the only
evidence of a threat to Chen’s life or freedom depended upon
his credibility, the adverse credibility determination in
this case necessarily precludes success on his claims for
asylum, withholding of removal, and CAT relief. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
U.S. Dep't of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
Because the adverse credibility determination is
dispositive, we need not consider the other arguments Chen
raises.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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