08-4677-ag
Chen v. Holder
BIA
Abrams, IJ
A99 076 361
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
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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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 18 th day of February, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROSEMARY S. POOLER,
ROBERT A. KATZMANN,
Circuit Judges.
_____________________________________
ZHONG HUI CHEN,
Petitioner,
v. 08-4677-ag
NAC
ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
Respondent.
______________________________________
FOR PETITIONER: Lee Ratner, Law Offices of Michael
Brown, New York, NY.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr., is automatically substituted for
former Attorney General Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Michael F. Hertz, Acting Assistant
Attorney General; Mary Jane Candaux,
Assistant Director; Achiezer
Guggenheim, Attorney, Office of
Immigration Litigation, Civil
Division, U.S. Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Zhong Hui Chen, a native and citizen of the People’s
Republic of China, seeks review of an August 28, 2008 order
of the BIA affirming the November 8, 2006 decision of
Immigration Judge (“IJ”) Steven R. Abrams, denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Zhong
Hui Chen, No. A99 076 361 (B.I.A. Aug. 28, 2008), aff’g No.
A99 076 361 (Immig. Ct. N.Y. City Nov. 8, 2006). We assume
the parties’ familiarity with the underlying facts and
procedural history of this case.
When the BIA affirms the IJ’s decision in all respects
but one, we review the IJ’s decision as modified by the BIA
decision, i.e., “minus the single argument for denying
relief that was rejected by the BIA.” Xue Hong Yang v. U.S.
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Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Here,
where the BIA noted the IJ’s error as to a perceived
inconsistency in the record, but found that the adverse
credibility determination was otherwise supported by the
record, we review the IJ’s decision minus that erroneous
finding. Id. We review the agency’s factual findings,
including adverse credibility findings, under the
substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
For asylum applications governed by the amendments made
to the Immigration and Nationality Act (“INA”) by the REAL
ID Act of 2005, the agency may, considering the totality of
the circumstances, base a credibility finding on an asylum
applicant’s demeanor, the plausibility of his or her
account, and inconsistencies in his or her 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).
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Here, the IJ properly identified an internal
inconsistency in Chen’s testimony where he initially claimed
never to have left his uncle’s village when he was in hiding
there, then indicated that he had left on one occasion for a
doctor’s appointment, and again at the instruction of a
snakehead. These statements are clearly inconsistent, and
Chen waives any challenge to this finding in his brief to
this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
545 n.7 (2d Cir. 2005).
The IJ also found that during his testimony Chen
“always was evasive, putting his head down, not answering
questions, not looking at anyone.” We accord to an IJ’s
findings relating to an applicant’s demeanor “particular
deference” because the IJ’s ability to observe the witness’s
demeanor places him in the best position to evaluate whether
apparent problems in the witness’s testimony suggest a lack
of credibility. Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d
Cir. 2007) (quoting Jin Chen v. U.S. Dep’t of Justice, 426
F.3d 104, 113 (2d Cir. 2005)). We find no reason not to
accord deference to the IJ’s demeanor finding in this case.
Finally, in finding Chen not credible, the IJ relied on
his failure to corroborate his claims that he protested the
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family planning policy and that he went into hiding at his
uncle’s house before he fled China. Such findings where
proper where Chen’s failure to corroborate his testimony
made him unable to rehabilitate testimony that had already
been called into question. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 341 (2d Cir. 2006).
Taken together, the internal inconsistencies in Chen’s
testimony, his evasive demeanor, and his failure to
corroborate certain aspects of his claim served to undermine
his credibility, see 8 U.S.C. § 1158(b)(1)(B)(iii), and the
IJ’s adverse credibility determination thus was supported by
substantial evidence, 8 U.S.C. § 1252(b)(4)(B); see also
Corovic, 519 F.3d at 95. Accordingly, the agency’s denial
of Chen’s application for asylum was proper.
Finally, inasmuch as Chen based his withholding of
removal and CAT claims on the same factual predicate as his
asylum claim, those claims necessarily fail. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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