Wen Lin Chen v. Sessions

16-679
Chen v. Sessions
BIA
Poczter, IJ
A205 226 227

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 15th day of June, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 WEN LIN CHEN,
14 Petitioner,
15
16 v. 16-679
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, Karikari &
24 Associates, P.C., New York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; John S.
28 Hogan, Assistant Director; Mona
29 Maria Yousif, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is

4 DISMISSED in part and DENIED in part.

5 Petitioner Wen Lin Chen, a native and citizen of the

6 People’s Republic of China, seeks review of a February 12, 2016,

7 decision of the BIA, both (1) affirming a December 23, 2013,

8 decision of an Immigration Judge (“IJ”), which denied asylum,

9 withholding of removal, and relief under the Convention Against

10 Torture (“CAT”) and concluded that Chen filed a frivolous

11 application, and (2) denying his motion to remand. In re Wen

12 Lin Chen, No. A205 226 227 (B.I.A. Feb. 12, 2016), aff’g No.

13 A205 226 227 (Immig. Ct. N.Y. City Dec. 23, 2013). We assume

14 the parties’ familiarity with the underlying facts and

15 procedural history in this case.

16 We have reviewed the IJ’s decision as supplemented by the

17 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18 The applicable standards of review are well established. See

19 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

20 165-66 (2d Cir. 2008) (adverse credibility determinations

21 reviewed under substantial evidence standard); Li Yong Cao v.

22 U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005) (denials

23 of motions to remand reviewed for abuse of discretion).

2
1 I. One-Year Bar

2 An asylum application generally must be filed within one

3 year of an applicant’s arrival in the United States. 8 U.S.C.

4 § 1158(a)(2)(B), (D). Our jurisdiction to review the agency’s

5 pretermission of asylum on timeliness grounds is limited to

6 “constitutional claims or questions of law.” 8 U.S.C.

7 §§ 1158(a)(3), 1252(a)(2)(D).

8 Chen alleges that he entered the United States on March 21,

9 2011. However, as discussed in further detail below, Chen’s

10 testimony was internally inconsistent with respect to this

11 date, and the Government proffered evidence that Chen was in

12 the United States as early as 2007. Chen’s only challenge to

13 the one-year bar determination is that the Government’s

14 evidence should not have been accorded any weight. This

15 challenge to the weight of the evidence “merely quarrels over

16 the correctness of the factual findings or justification for

17 the discretionary choices,” and we lack jurisdiction to review

18 it. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

19 329 (2d Cir. 2006).

20 II. Denial of Relief

21 For applications like Chen’s, governed by the REAL ID Act,

22 the agency may, “[c]onsidering the totality of the

23 circumstances,” base a credibility finding on inconsistencies

3
1 in his statements and evidence, “without regard to whether”

2 those inconsistencies go “to the heart of the applicant’s

3 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

4 at 163-64. “We defer . . . to an IJ’s credibility determination

5 unless, from the totality of the circumstances, it is plain that

6 no reasonable fact-finder could make such an adverse

7 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

8 Substantial evidence supports the adverse credibility

9 determination.

10 The agency reasonably relied on inconsistencies between

11 Chen’s testimony and the Government’s evidence, as well as

12 Chen’s internally inconsistent testimony, concerning his date

13 of entry to the United States. See 8 U.S.C.

14 § 1158(b)(1)(B)(iii). Chen’s application alleged that he

15 entered the United States on March 21, 2011, through the Texas

16 border; he initially testified to that date and emphasized that

17 he had never previously entered the United States. This

18 conflicted with the Government’s evidence—two applications for

19 immigration benefits filed in 2007, bearing Chen’s full name,

20 birth date, country and province of birth, and marital

21 status—placing him in the United States as early as 2007. When

22 confronted with this evidence, Chen did not proffer an

23 explanation or counter with other evidence. Instead, he

4
1 maintained that his first and only entry occurred on March 21,

2 2011, and denied filing the 2007 applications. The agency

3 reasonably concluded that this discrepancy undermined Chen’s

4 claim of being detained and beaten in China in 2010. Cf. Xian

5 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.

6 2006) (“[A] material inconsistency in an aspect of [an

7 applicant’s] story that served as an example of the very

8 persecution from which he sought asylum . . . afforded

9 substantial evidence to support the adverse credibility

10 finding.”).

11 Chen argues that it was error for the agency to find him

12 not credible on that basis because the Government’s evidence

13 was unreliable: the applications did not bear his signature and

14 were prepared by an individual who had defrauded applicants and

15 filed fraudulent applications for immigration relief. The

16 agency acknowledged these deficiencies but nevertheless

17 concluded that the two applications supported the adverse

18 credibility determination. “Decisions as to . . . which of

19 competing inferences to draw are entirely within the province

20 of the trier of fact.” Siewe v. Gonzales, 480 F.3d 160, 167

21 (2d Cir. 2007) (internal quotation marks omitted); see also Xiao

22 Ji Chen, 471 F.3d at 342 (observing that this Court generally

23 defers to the weight the agency gives to evidence). Because

5
 1 the agency’s finding is “tethered to the evidentiary record,”

2 we accord it deference. Siewe, 480 F.3d at 168-69.

3 Further, Chen’s internally inconsistent testimony

4 supports the agency’s reliance on the 2007 applications and the

5 resulting adverse credibility determination. 8 U.S.C.

6 § 1158(b)(1)(B)(iii). Chen contradicted his own testimony

7 that he entered the United States on March 21, 2011, by stating

8 that he picked up a document while in China on March 24, 2011.

9 When asked to explain this discrepancy, Chen responded, “This

10 has been long time ago [sic]. I don’t know,” then changed his

11 testimony to say that he picked up the document in February 2011.

12 His explanation did not resolve the inconsistency and the agency

13 reasonably found him not credible on this basis. See Majidi

14 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

15 do more than offer a plausible explanation for his inconsistent

16 statements to secure relief; he must demonstrate that a

17 reasonable fact-finder would be compelled to credit his

18 testimony.” (internal quotation marks omitted)).

19 Chen’s testimony that he entered the United States in March

20 2011 for the first time is also undercut by his response to a

21 question about being fingerprinted. Chen testified that he was

22 fingerprinted once, in February 2012, when applying for asylum.

23 When the Government attorney mentioned evidence that Chen was

6
1 living in Washington state, without specifying a year, Chen,

2 without prompting, asked, “You’re talking about in 2010?” Chen

3 then repeated that he was still in China in 2010. Given the

4 other inconsistencies regarding Chen’s entry, the IJ reasonably

5 concluded that this spontaneous reference to 2010 contributed

6 to the totality of the circumstances demonstrating that he

7 lacked credibility.

8 Having questioned Chen’s credibility, the agency did not

9 err in concluding that his corroborating evidence was

10 insufficient to rehabilitate his testimony. Biao Yang v.

11 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

12 failure to corroborate his . . . testimony may bear on

13 credibility, because the absence of corroboration in general

14 makes an applicant unable to rehabilitate testimony that has

15 already been called into question.”). The agency reasonably

16 gave diminished weight to Chen’s witness testimony because the

17 witness had no personal knowledge of Chen’s entry date. See

18 Xiao Ji Chen, 471 F.3d at 342. The agency also reasonably gave

19 diminished weight to letters from Chen’s mother and friends in

20 China because they were authored by interested parties not

21 subject to cross-examination, a ruling that Chen does not

22 challenge. See Matter of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209,

23 215 (B.I.A. 2010) (giving decreased weight to letters from

7
1 interested witnesses not subject to cross-examination), rev’d

2 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

3 Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.

4 2013).

5 Given the inconsistencies, which call into question

6 whether Chen was in China in 2010 at the time of the alleged

7 persecution, as well as his failure to rehabilitate his claim

8 with reliable corroborating evidence, it cannot be said “that

9 no reasonable fact-finder could make such an adverse

10 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. The

11 adverse credibility determination is dispositive of asylum,

12 withholding of removal, and CAT relief because all three forms

13 of relief are based on the same factual predicate. Paul v.

14 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

15 III. Frivolousness Finding

16 We find no basis to disturb the agency’s conclusion that

17 Chen knowingly submitted a frivolous application. The agency

18 employed all four procedural safeguards. See In re Y-L-, 24

19 I. & N. Dec. 151, 155 (B.I.A. 2007). Chen had notice of the

20 consequences of filing a frivolous application because there

21 was a written warning immediately above his signature on his

22 application, see Gade Niang v. Holder, 762 F.3d 251, 254 (2d

23 Cir. 2014), and, the IJ put Chen on notice of a potential

8
1 frivolousness determination at his initial merits hearing.

2 The agency rendered an explicit finding that Chen knowingly

3 filed a frivolous application. The agency’s finding is

4 supported by the record, which, as discussed above, includes

5 evidence that Chen entered United States before the time of the

6 alleged persecution in China. And Chen was given an

7 opportunity to account for the discrepancy, but rather than

8 provide evidence of his presence in China, chose simply to deny

9 that he filed for immigration benefits in 2007.

10 IV. Motion to Remand

11 We find no abuse of discretion in the BIA’s denial of Chen’s

12 motion to remand for consideration of new evidence. See Li Yong

13 Cao, 421 F.3d at 157. The relevant inquiry is “whether the

14 evidence could have been presented at the hearing before the

15 IJ.” Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006); see

16 also 8 C.F.R. § 1003.2(c)(1). Chen’s evidence consisted

17 solely of affidavits and photographs purporting to show his

18 attendance at a wedding in China in 2008, all of which could

19 have presented to the IJ. See Norani, 451 F.3d at 294.

20 Although Chen argues that he lacked notice that he would need

21 to present evidence from as early as 2008, Chen had notice that

22 the IJ was considering a frivolousness finding based on his

23 entry date and did not produce additional evidence before the

9
1 IJ or explain why he waited to submit evidence until six months

2 after the final merits hearing. Accordingly, we find no abuse

3 of discretion. See 8 C.F.R. § 1003.2(c)(1); Li Yong Cao, 421

4 F.3d at 156.

5 For the foregoing reasons, the petition for review is

6 DISMISSED in part and DENIED in part. As we have completed our

7 review, the pending motion for a stay of removal in this petition

8 is DISMISSED as moot.

9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk

10