15-4139
Chen v. Sessions
BIA
Christensen, IJ
A205 445 592
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 May, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIN XING CHEN,
14 Petitioner,
15
16 v. 15-4139
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,*
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Douglas
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jefferson B. Sessions, III, is automatically substituted for
former Attorney General Loretta E. Lynch as the Respondent in this
case.
1 E. Ginsburg, Assistant Director;
2 Stratton C. Strand, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Jin Xing Chen, a native and citizen of the
12 People’s Republic of China, seeks review of a November 24, 2015
13 decision of the BIA, affirming a March 26, 2014 decision of an
14 Immigration Judge (“IJ”) denying Chen’s application for asylum,
15 withholding of removal, and relief under the Convention Against
16 Torture (“CAT”). In re Jin Xing Chen, No. A205 445 592 (B.I.A.
17 Nov. 24, 2015), aff’g No. A205 445 592 (Immig. Ct. N.Y.C Mar.
18 26, 2014). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 Under the circumstances of this case, we review the IJ’s
21 decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t
22 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
23 standards of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
25 (2d Cir. 2008).
2
1 For asylum applications like Chen’s, governed by the REAL
2 ID Act, the agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility finding an applicant’s
4 “demeanor, candor, or responsiveness,” and on inconsistencies
5 in an applicant’s statements and evidence, “without regard to
6 whether” those inconsistencies go “to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
8 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility
9 determination unless, from the totality of the circumstances,
10 it is plain that no reasonable fact-finder could make such an
11 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
12 Further, “[a] petitioner ‘must do more than offer a plausible
13 explanation for his inconsistent statements to secure relief;
14 he must demonstrate that a reasonable fact-finder would be
15 compelled to credit his testimony.’” Majidi v. Gonzales, 430
16 F.3d 77, 80 (2d Cir. 2005) (quoting Zhou Yun Zhang v. U.S. INS,
17 386 F.3d 77, 76 (2d Cir. 2004)). The totality of the
18 circumstances supports the adverse credibility determination.
19 The agency reasonably relied on inconsistencies relating
20 to Chen’s testimony regarding the treatment of his fellow church
21 members and his practice of Christianity. Chen submitted a
22 letter from a purported fellow church member in China, Feng
23 Chen, who wrote that he (Feng Chen) was detained for 19 days.
3
1 Chen testified that Feng Chen was detained for “about 40 days”
2 before confessing that he did not read Feng’s letter. The
3 agency reasonably relied on this inconsistency, 8 U.S.C.
4 § 1158(b)(1)(B)(iii), and reasonably concluded that Chen’s
5 unfamiliarity with his evidence further undermined his
6 credibility, see Majidi, 430 F.3d at 80. And although Chen
7 challenges this inconsistency as trivial, “an IJ may rely on
8 any inconsistency or omission in making an adverse credibility
9 determination,” where, as here, “the ‘totality of the
10 circumstances’ establishes that an asylum applicant is not
11 credible.” Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C.
12 § 1158(b)(1)(B)(iii)).
13 The agency also reasonably relied on an inconsistency
14 concerning Chen’s church attendance in the United States. 8
15 U.S.C. § 1158(b)(1)(B)(iii). Chen testified that he attends
16 church almost every week, or two to three times per month. But
17 his letter from his church reflects only 14 visits between
18 August 2012 and February 2014—less than once per month. The
19 agency was not compelled to accept Chen’s explanation that he
20 sometimes forgot to “clock in” because he made no effort to
21 corroborate that claim. Administrative Record (“AR”) at 110;
22 see also Majidi, 430 F.3d at 80. Although Chen presented a
23 witness to corroborate his practice of Christianity in the
4
1 United States, the agency reasonably gave her testimony
2 diminished weight because she attended church with Chen only
3 once, was unaware of his alleged persecution in China, and
4 believed that he had become a Christian in the United States
5 in 2013, contrary to his testimony that he converted to
6 Christianity in 2008 in China. See Xiao Ji Chen v. U.S. Dep’t
7 of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that
8 determining weight of evidence is “largely within the
9 discretion of the IJ”).
10 The adverse credibility determination is further supported
11 by the IJ’s demeanor finding, to which we defer. Majidi, 430
12 F.3d at 81 n.1. The IJ concluded that “frequent long
13 pauses . . . left the impression that [Chen] was testifying
14 from a script rather than from actual memory.” AR at 66.
15 Although Chen now attempts to explain that he paused to jog his
16 memory, the agency was not compelled to accept Chen’s
17 explanation. See Majidi, 430 F.3d at 80; Li Hua Lin v. U.S.
18 Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be
19 still more confident in our review of observations about an
20 applicant’s demeanor where, as here, they are supported by
21 specific examples of inconsistent testimony.”).
22 Having questioned Chen’s credibility, the agency did not
23 err in concluding that Chen’s corroborating evidence was
5
1 insufficient to rehabilitate his testimony. “An applicant’s
2 failure to corroborate his . . . testimony may bear on
3 credibility, because the absence of corroboration in general
4 makes an applicant unable to rehabilitate testimony that has
5 already been called into question.” Biao Yang v. Gonzales, 496
6 F.3d 268, 273 (2d Cir. 2007). The agency reasonably gave
7 diminished weight to letters from Chen’s father, a church
8 official, and a friend in China because they were written by
9 interested parties who were not subject to cross-examination
10 and because Chen “was unfamiliar with some of the documents he
11 submitted.” AR at 70; see also Matter of H-L-H- & Z-Y- Z-, 25
12 I. & N. Dec. 209, 215 (B.I.A. 2010) (agency can give little
13 weight to document drafted by interested witness not subject
14 to cross examination), rev’d on other grounds by Hui Lin Huang
15 v. Holder, 677 F.3d 130 (2d Cir. 2012); Y.C. v. Holder, 741 F.3d
16 324, 334 (2d Cir. 2013) (“We defer to the agency’s determination
17 of the weight afforded to an alien’s documentary evidence.”).
18 Given these multiple inconsistencies, the IJ’s demeanor
19 finding, and the absence of reliable corroboration for Chen’s
20 assertions, it cannot be said “that no reasonable fact-finder
21 could make such a credibility ruling.” Xiu Xia Lin, 534 F.3d
22 at 167. Because Chen’s claims for asylum, withholding of
23 removal, and CAT relief are all based on the same factual
6
1 predicate, the adverse credibility ruling is dispositive of all
2 these claims. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
3 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
7