12-25
Chen v. Holder
BIA
Wiesel, IJ
A089 096 383
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.
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 27th day of February, two thousand thirteen.
PRESENT:
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
DAN JIN CHEN,
Petitioner,
v. 12-25
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: David A. Bredin, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Jennifer L.
Lightbody, Senior Litigation
Counsel; Robbin K. Blaya, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
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.
Dan Jin Chen, a native and citizen of the People’s
Republic of China, seeks review of a December 16, 2011
decision of the BIA affirming the November 20, 2009 decision
of the Immigration Judge (“IJ”), which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Dan Jin
Chen, No. A089 096 383 (B.I.A. Dec. 16, 2011), aff’g No.
A089 096 383 (Immig. Ct. N.Y. City, Nov. 20, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We have reviewed the IJ’s decision as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005). The applicable standards of review are well-
established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). For
asylum applications like Chen’s, governed by the REAL ID
Act, the agency may, “[c]onsidering the totality of the
circumstances . . . base a credibility finding on . . . the
consistency between the applicant’s or witness’s written or
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oral statements . . . without regard to whether an
inconsistency . . . goes to the heart of the applicant’s
claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
F.3d at 167. 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, 534 F.3d at 167.
Substantial evidence supports the agency’s adverse
credibility determination. That determination was based on
inconsistencies between Chen’s original asylum application,
in which she alleged that she was forced to undergo an
abortion in March 2008, and her amended application and
testimony before the IJ, in which she stated that the
abortion occurred in December 2007. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Chen’s
explanation for this inconsistency – that she made a mistake
on her initial application and attempted to correct it – was
insufficient to compel the agency to credit it, given her
later testimony that she was not aware of what was in the
initial application, and in light of other inconsistencies
in her applications that were identified by the IJ. See
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); Xiao
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Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006). Substantial evidence thus supports the IJ’s adverse
credibility determination, which serves as a dispositive
basis for the agency’s denial of asylum, withholding of
removal, and CAT relief based on Chen’s family planning
claim. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
F.3d at 165-66; see also Paul v. Gonzales, 444 F.3d 148, 156
(2d Cir. 2006) (Withholding); Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 523 (2d Cir. 2005) (CAT).
Chen also challenges the BIA’s independent denial of
relief based on her practice of Christianity. The agency
did not err, however, in finding that Chen failed to
demonstrate an objectively reasonable fear of future
persecution, because she presented no evidence that the
Chinese authorities were aware or are likely to become aware
of her practice of Christianity, and merely made a
perfunctory assertion that she would be harmed as a result
of her participation in an underground church. See
Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);
Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
(per curiam).
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Finally, the BIA reasonably determined that Chen failed
to establish her eligibility for CAT relief based on her
illegal departure from China as she presented no
particularized evidence suggesting that she would likely be
tortured. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432
F.3d 156, 157–60 (2d Cir. 2005).
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. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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