15-320
Chen v. Sessions
BIA
Segal, IJ
A200 174 033
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.
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
5th day of April, two thousand seventeen.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
_____________________________________
DING XUAN CHEN,
Petitioner,
v. 15-320
NAC
JEFFERSON B. SESSIONS, III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, Law Offices of Michael
Brown, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Shelley
R. Goad, Assistant Director; Kristin
Moresi, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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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 Ding Xuan Chen, a native and citizen of the
People’s Republic of China, seeks review of a January 20, 2015
decision of the BIA, affirming an August 21, 2013 decision of
an Immigration Judge (“IJ”) denying asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). See In re Ding Xuan Chen, No. A200 174 033 (B.I.A. Jan.
20, 2015), aff’g No. A200 174 033 (Immig. Ct. N.Y.C. Aug. 21,
2013). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
The agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements and other record evidence “without regard to whether”
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those inconsistencies go “to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); accord Xiu Xia Lin v. Mukasey,
534 F.3d at 163-64. “We defer therefore to an IJ’s credibility
determination unless . . . it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.” Xiu
Xia Lin v. Mukasey, 534 F.3d at 167. Substantial evidence
supports the agency’s determination that Chen was not credible.
The IJ did not err in basing her credibility determination,
in part, on her observations of Chen’s demeanor. See Majidi v.
Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that
particular deference is given to trier of fact’s assessment of
demeanor); Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113
(2d Cir. 2005) (“We give particular deference to credibility
determinations that are based on the adjudicator’s observation
of the applicant’s demeanor . . . .”). Chen was often
unresponsive and could not remember facts that he had recounted
in his asylum application, including whether authorities had
threatened sterilization. The IJ reasonably declined to credit
Chen’s excuse that he had a bad memory, given that his asylum
application included specific details. See Majidi v. Gonzales,
430 F.3d at 80 (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
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he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (emphasis in original)
(internal quotation marks omitted)).
This demeanor finding, and the adverse credibility
determination as a whole, are further supported by record
inconsistencies. See Li Hua Lin v. U.S. Dep’t of Justice, 453
F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident
in our review of observations about an applicant’s demeanor
where, as here, they are supported by specific examples of
inconsistent testimony.”); Xiu Xia Lin v. Mukasey, 534 F.3d at
166-67. Chen testified inconsistently when questioned how his
wife became pregnant in 2010 despite being forced to use an IUD.
He testified both that the IUD fell out or was lost, and that
his wife looked for a private physician to remove the IUD. The
agency was not compelled to credit Chen’s explanation for this
discrepancy—that he forgot—because it did not resolve the
inconsistency and, within his explanation, he provided
unresponsive answers and confusing details. See Majidi v.
Gonzales, 430 F.3d at 80–81. Chen’s explanation that there was
no inconsistency because he testified that his wife looked for
a doctor, not that she found one, is not compelling given that
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he did not proffer this explanation before the IJ when questioned
about the discrepancy. See id.
Given the demeanor and inconsistency findings, the agency
reasonably found Chen not credible, see Xiu Xia Lin v. Mukasey,
534 F.3d at 165-66, even if an additional inconsistency relating
to the sex of the unborn child in his wife’s second pregnancy
was the result of translation error, see Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006) (holding remand
unnecessary when court can “confidently predict” that agency
would reach same decision absent error). That adverse
credibility determination is dispositive of asylum, withholding
of removal, and CAT relief because all three claims are based
on the same factual predicate. See Paul v. Gonzales, 444 F.3d
148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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