10-2005-ag
Chen v. Holder
BIA
Hom, IJ
A094 794 540
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24th day of April, two thousand twelve.
5
6 PRESENT:
7
8 RALPH K. WINTER,
9 ROBERT A. KATZMANN,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 DONG PIN CHEN,
15 Petitioner,
16
17 v. 10-2005-ag
18 NAC
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Lee Ratner, New York, NY
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Christopher C. Fuller,
28 Senior Litigation Counsel; Zoe J.
29 Heller, Civil Division, Office of
30 Immigration Litigation, U.S.
31 Department of Justice, Washington
32 D.C.
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
4 is DENIED.
5 Dong Pin Chen, a native and citizen of the People’s
6 Republic of China, seeks review of the April 23, 2010, order
7 of the BIA affirming the April 7, 2008, decision of
8 Immigration Judge (“IJ”) Sandy K. Hom denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Dong
11 Pin Chen, No. A094 794 540 (B.I.A. Apr. 23, 2010), aff’g No.
12 A094 794 540 (Immig. Ct. N.Y. City Apr. 7, 2008). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); Corovic v.
20 Mukasey, 519, F.3d 90, 95 (2d Cir. 2008); Xiu Xia Lin v.
21 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). As an initial
22 matter, Chen does not challenge the agency’s denial of CAT
23 relief or determination that he did not establish his
2
1 eligibility for relief based on his practice of Falun Gong
2 in the United States, and thus we do not address those
3 claims and address only the merits of Chen’s petition as it
4 pertains to the agency’s adverse credibility and burden
5 findings related to asylum and withholding of removal based
6 on past persecution. See Yueqing Zhang v. Gonzales, 426
7 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (providing that
8 “[i]ssues not sufficiently argued in the briefs are
9 considered waived and normally will not be addressed on
10 appeal”) (citation omitted).
11 Petitioner concedes that, following the passage of the
12 REAL ID Act, an ability to depart China using one’s own
13 passport may be an appropriate factor on which to base an
14 implausibility finding,. See Ying Li v. BCIS, 529 F.3d 79,
15 82-83 (2d Cir. 2008). In Ying Li, based on a “totality of
16 the circumstances” analysis, this Court upheld an adverse
17 credibility determination where petitioner: (1) claimed to
18 promote Falun Gong for over six years without ever learning
19 or practicing it herself; (2) claimed she was sought by
20 police, but testified that a known Falun Gong practitioner
21 openly visited her home and was never arrested; (3) departed
22 China from an airport using her own passport; and
23 (4) recited only “elementary information” about Falun Gong
3
1 and presented photographs of herself practicing Falun Gong
2 on only a single occasion. Id.
3 However, petitioner argues that we have never held that
4 such an ability by itself is substantial evidence sufficient
5 to support an adverse credibility determination. See id.
6 (holding that “when an adverse credibility finding is based
7 partly or entirely on implausibility, we review the entire
8 record, not whether each unusual or implausible feature of
9 the account can be explained or rationalized.”). We
10 disagree with this description of the record before us. The
11 adverse credibility decision in this matter was not based
12 solely on petitioner’s use of his own passport to leave
13 China but on the implausibility of his claim of persecution
14 given the overall context in which his passport was used.
15 Id. Petitioner testified that when he used his passport, he
16 was an escaped prisoner and in hiding and that the police
17 were looking for him “everywhere.” The finding that this
18 scenario was implausible hardly gave excessive, much less
19 exclusive, weight to petitioner’s use of his passport. Nor
20 is the finding otherwise irrational. Id.
21 We therefore need not address the agency’s alternative
22 determination that Chen failed to demonstrate that the harm
23 he suffered amounted to persecution.
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
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