Hua Chen v. Holder

11-4784 Chen v. Holder BIA Cheng, IJ A087 433 087 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 28th day of September, two thousand twelve. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _______________________________________ 12 13 HUA CHEN, 14 Petitioner, 15 16 v. 11-4784 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New 24 York. 25 26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 27 Attorney General; Cindy S. Ferrier, 28 Assistant Director; Brendan P. 29 Hogan, Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, 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 Hua Chen, a native and citizen of the People’s Republic 6 of China, seeks review of an October 31, 2011, decision of 7 the BIA affirming the March 15, 2010, decision of 8 Immigration Judge (“IJ”) Mary Cheng, which denied her 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Hua 11 Chen, No. A087 433 087 (B.I.A. Oct. 31, 2011), aff’g No. 12 A087 433 087 (Immig. Ct. N.Y. City Mar. 15, 2010). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as supplemented by the BIA. See Yan Chen 17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 18 applicable standards of review are well-established. See 8 19 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 20 F.3d 510, 513 (2d Cir. 2009). 21 Initially, while we require petitioners to raise 22 specific issues with the BIA that are later raised in this 23 Court, Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (per 2 1 curiam), where, as here, the BIA addresses issues that were 2 not raised by an applicant in the course of an appeal, we 3 may consider them, Waldron v. INS, 17 F.3d 511, 515 n.7 (2d 4 Cir. 1994). 5 The BIA determined that the IJ’s adverse credibility 6 determination was not clearly erroneous because it was based 7 on “specific and cogent discrepancies” within Chen’s 8 testimony, and between her testimony and the documentary 9 evidence. We find that the BIA’s determination is supported 10 by substantial evidence. 11 The IJ found Chen’s demeanor to be “troubling” because 12 her testimony was “non-responsive, evasive and rehearsed.” 13 For example, Chen was unable to answer a straightforward 14 question regarding her fear of returning to China. Chen 15 does not challenge the demeanor findings, noting only that 16 “[t]he [IJ] was also critical of [her] demeanor.” As Chen 17 has not contested the demeanor findings, she has provided no 18 basis for us to disturb the particular deference due to 19 those findings. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d 20 Cir. 2005). 21 The IJ also determined that Chen’s testimony was 22 inconsistent with record evidence regarding when during her 23 pregnancy her alleged abortion occurred, how long the 3 1 abortion procedure lasted, and whether she entered the 2 United States for religious reasons or because of her 3 opposition to China’s family planning policies. For 4 example, Chen’s testimony that she was four months pregnant 5 when the forced abortion occurred in 2008 was inconsistent 6 with medical records as well as her sworn statement during 7 her credible fear interview showing that she was only two 8 months pregnant. Chen’s explanation for this discrepancy 9 that she was two months pregnant at the time of her medical 10 exam, but four months pregnant at the time of the abortion 11 procedure, is inadequate to compel a reasonable fact-finder 12 to credit it, because it fails to explain why Chen told an 13 asylum officer that she was two months pregnant when the 14 procedure occurred. Id. 15 Finally, the IJ found Chen’s asylum claim to be 16 implausible because she was unable to reconcile her 17 testimony that the hospital medical staff was able to obtain 18 personal information such as her age, address, and medical 19 history, with her testimony that she was unable to speak 20 with anyone at the hospital during her abortion procedure 21 because she was in pain. Chen’s argument that “it can 22 safely be assumed” that the family planning officials who 23 forcibly took her to the hospital already knew the 4 1 information would not compel a reasonable fact-finder to 2 credit her testimony, especially where Chen also testified 3 that she previously had not been to the hospital where the 4 abortion procedure occurred. Id. at 80. 5 As the only evidence of a threat to Chen’s life or 6 freedom depended upon her credibility, the adverse 7 credibility determination in this case is dispositive of her 8 claims for asylum, withholding of removal, and CAT relief. 9 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue 10 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d 11 Cir. 2005). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 5