19-2521
Chen v. Garland
BIA
Zagzoug, IJ
A206 729 014
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 11th day of January, two thousand twenty-two.
PRESENT:
PIERRE N. LEVAL,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
BIN CHEN,
Petitioner,
v. 19-2521
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Norman Kwai Wing Wong, Law
Offices of Norman Kwai Wing Wong,
New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Claire L. Workman, Senior
Litigation Counsel; Juria L.
Jones, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Bin Chen, a native and citizen of the People’s
Republic of China, seeks review of a 2019 decision of the BIA
affirming a 2018 decision of an Immigration Judge (“IJ”)
denying asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). In re Bin Chen, No.
A 206 729 014 (B.I.A. July 31, 2019), aff’g No. A 206 729 014
(Immig. Ct. N.Y. City Feb. 1, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
We review the IJ’s decision as modified by the BIA. See
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
Cir. 2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
credibility determination for substantial evidence).
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“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on” inconsistencies within and between an
applicant’s statements and other evidence “without regard to
whether an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant’s claim, or any other relevant
factor.” 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); accord
Hong Fei Gao, 891 F.3d at 76. On review, we conclude that
substantial evidence supports the agency’s adverse
credibility determination.
Chen alleged that his parents were arrested in 2005 for
attending an underground church, and that they continued
attending church without incident until February 2013, when
they fled during a police raid on the church. He further
alleged that, a week later, the police harassed and beat Chen
because he would not reveal his parents’ whereabouts. In
making its adverse credibility finding, the agency reasonably
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relied on an omission from Chen’s application,
inconsistencies between his application and testimony, and
inconsistencies within his testimony. See 8 U.S.C.
§ 1158(b)(1)(B)(iii).
To start, Chen testified that on September 8, 2013,
shortly after he had returned to live at his parents’ home,
the police came to the home, took his Bible, and smashed the
furniture. He further testified that, following the
September 8 incident, the police visited “[a]bout once a week”
between then and when he left China on April 19, 2014, looking
for information about his parents. Certified Administrative
Record (“CAR”) at 176. But his application omitted mention
of any such weekly visits; instead, the only police visit to
his parents’ home that he identified was the September 8
incident.
We find no error in the agency’s reliance on this
omission because, although omissions may be less probative
than inconsistencies, the extent of Chen’s interactions with
police was an extremely significant aspect of his claim. The
agency appropriately highlighted the discrepancy between the
statement in his application, where he identified one
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specific visit to his parents’ home, and his testimony, in
which he said that they occurred weekly over a period of more
than seven months. See Hong Fei Gao, 891 F.3d at 78–79
(holding that “[i]n general omissions are less probative . .
. than inconsistencies,” and that in assessing probative
value, “an IJ should consider whether those facts are ones
that a credible petitioner would reasonably have been
expected to disclose under the circumstances” (internal
quotation marks omitted)). Chen did not offer any meaningful
explanation for his failure to mention the weekly visits in
his affidavit. This was more in the nature of a serious
inconsistency as to an important aspect of his claim than a
mere omission of a detail.
The agency also reasonably relied on three other
inconsistencies within or among Chen’s statements. See 8
U.S.C. § 1158(b)(1)(B)(iii). Chen testified that his parents
were leaders in their underground church, but when asked about
their role, he responded that they were “just Christians” and
“[t]here’s no such thing as co-leader.” CAR at 216. He also
described his work history inconsistently. When testifying,
he stated that beginning in 2012 he had held two different
5
jobs in shops, and that he had not been employed before then.
In contrast, in his application he asserted that he had
“various” jobs from 2010 to 2013. Also, Chen stated at one
point during his testimony that he had never thought about
coming to the United States before the incidents in 2013,
but, when questioned by government counsel, he confirmed that
he had in fact sought and been denied visas to the United
States in 2011 and 2012. The IJ was not required to credit
Chen’s explanation that he thought counsel for the government
was asking when he started thinking about coming to the United
States for religious reasons rather than more generally; the
question was an open-ended one. 1
The agency also reasonably relied on the absence of
reliable corroboration for Chen’s account of the facts
supporting his application. “An applicant’s failure to
corroborate his or her testimony may bear on credibility,
1In sustaining the agency’s credibility assessment, we do not rely
on its adverse inference based on the omission from Chen’s direct
testimony of details regarding a police visit to his employer. He
mentioned the incident in his application and direct testimony,
and the omission from those statements of details drawn out on
cross examination is not probative here of credibility. See Hong
Fei Gao, 891 F.3d at 77–79. The agency’s error in this regard
does not require remand, however, given its other sound findings.
See Lianping Li v. Lynch, 839 F.3d 144, 149 (2d Cir. 2016).
6
because the absence of corroboration in general makes an
applicant unable to rehabilitate testimony that has already
been called into question.” Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007). The agency could have credited, but
was not required to credit, letters from Chen’s father and an
underground church member because his father was an
interested witness and neither author was available for cross
examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d
Cir. 2013) (holding that “[w]e generally defer to the agency’s
evaluation of the weight to be afforded an applicant’s
documentary evidence” and upholding the agency’s decision to
afford very little weight to letter from applicant’s spouse
in China); Matter of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209, 215
(B.I.A. 2010) (giving diminished evidentiary weight to
letters from “relatives and friends,” because they were from
interested witnesses not subject to cross examination), rev’d
on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d
Cir. 2012).
In sum, given the omission, inconsistencies, and lack of
reliable corroboration, substantial evidence supports the
agency’s adverse credibility determination. See 8 U.S.C.
7
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. This
determination is dispositive of Chen’s claims for asylum,
withholding of removal, and CAT relief because his claims for
all three forms of relief rest 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. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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