20-1160
Chen v. Garland
BIA
Laforest, IJ
A206 797 907
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 12th day of January, two thousand twenty-
5 two.
6
7 PRESENT:
8 DEBRA ANN LIVINGSTON,
9 Chief Judge,
10 MICHAEL H. PARK,
11 STEVEN J. MENASHI,
12 Circuit Judges.
13 _____________________________________
14
15 MEI-ZHEN CHEN,
16 Petitioner,
17
18 v. 20-1160
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Farah Loftus, Sherman Oaks, CA.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General;
29 Russell J. E. Verby, Senior
1 Litigation Counsel; John D.
2 Williams, Trial Attorney, Office
3 of Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
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
10 is DENIED in part and DISMISSED in part.
11 Petitioner Mei-Zhen Chen, a citizen of the People’s
12 Republic of China, seeks review of a March 11, 2020, decision
13 of the BIA affirming a May 22, 2018, decision of an
14 Immigration Judge (“IJ”) denying Chen’s application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Mei-Zhen Chen, No.
17 A206 797 907 (B.I.A. Mar. 11, 2020), aff’g No. A206 797 907
18 (Immig. Ct. N.Y. City May 22, 2018). We assume the parties’
19 familiarity with the underlying facts and procedural history.
20 We have considered the IJ’s decision as modified by the
21 BIA, i.e., minus the IJ’s burden finding that the BIA did not
22 reach. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
23 520, 522 (2d Cir. 2005). The applicable standards of review
24 are well established. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he
25 administrative findings of fact are conclusive unless any
2
1 reasonable adjudicator would be compelled to conclude to the
2 contrary.”). “[W]e review the agency’s decision for
3 substantial evidence and must defer to the factfinder’s
4 findings based on such relevant evidence as a reasonable mind
5 might accept as adequate to support a conclusion.” Singh v.
6 Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal quotation
7 marks omitted). “The scope of review under the substantial
8 evidence standard is exceedingly narrow, and we will uphold
9 the BIA’s decision unless the petitioner demonstrates that
10 the record evidence was so compelling that no reasonable
11 factfinder could fail to find him eligible for relief.” Id.
12 (internal quotation marks omitted).
13 “Considering the totality of the circumstances, and all
14 relevant factors, a trier of fact may base a credibility
15 determination on the demeanor, candor, or responsiveness of
16 the applicant or witness, the inherent plausibility of the
17 applicant’s or witness’s account, the consistency between the
18 applicant’s or witness’s written and oral statements . . . ,
19 the internal consistency of each such statement, [and] the
20 consistency of such statements with other evidence of record
21 . . . without regard to whether an inconsistency, inaccuracy,
22 or falsehood goes to the heart of the applicant’s claim, or
3
1 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
2 “We defer . . . to an IJ’s credibility determination unless,
3 from the totality of the circumstances, it is plain that no
4 reasonable fact-finder could make such an adverse credibility
5 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
6 2008); accord Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
7 Cir. 2018). Substantial evidence supports the agency’s
8 determination that Chen was not credible as to her claim that
9 police in China hit her for passing out religious flyers and
10 that she fears future persecution on account of her religious
11 practice.
12 The IJ did not err in relying on Chen’s evasive and
13 unresponsive demeanor. See 8 U.S.C. § 1158(b)(1)(B)(iii).
14 That finding is supported by the record, which shows that she
15 was evasive and unresponsive to questions about where her
16 church gatherings were held in China, why police had arrested
17 others but not her, and why her husband’s letter was
18 inconsistent with her testimony regarding the number of her
19 interactions with police. We afford “particular deference to
20 credibility determinations that are based on the
21 adjudicator’s observation of the applicant’s demeanor,” as
4
1 the determination was here. Jin Chen v. U.S. Dep’t of Justice,
2 426 F.3d 104, 113 (2d Cir. 2005).
3 The IJ’s demeanor finding and the adverse credibility
4 determination as a whole are further supported by Chen’s
5 inconsistent evidence regarding how many interactions she had
6 with police, how many individuals distributed flyers with
7 her, and what happened to those individuals. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii); see also Li Hua Lin v. U.S. Dep’t of
9 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still
10 more confident in our review of observations about an
11 applicant’s demeanor where, as here, they are supported by
12 specific examples of inconsistent testimony.”). Chen did not
13 compellingly explain these inconsistencies. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 80 (2d
15 Cir. 2005) (“A petitioner must do more than offer a plausible
16 explanation for his inconsistent statements to secure relief;
17 he must demonstrate that a reasonable fact-finder would be
18 compelled to credit his testimony.”) (internal quotation
19 marks omitted). While “even a single inconsistency might
20 preclude an alien from showing that an IJ was compelled to
21 find him credible,” the “[m]ultiple inconsistencies” here “so
5
1 preclude even more forcefully.” Likai Gao v. Barr, 968 F.3d
2 137, 145 n.8 (2d Cir. 2020).
3 The agency was separately entitled to rely on Chen’s
4 failure to provide reliable corroborating evidence. See 8
5 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact
6 determines that the applicant should provide evidence that
7 corroborates otherwise credible testimony, such evidence must
8 be provided unless the applicant does not have the evidence
9 and cannot reasonably obtain the evidence.”); Zou v. Garland,
10 No. 19-2003, 2021 WL 4097775, at *1 (2d Cir. Sept. 9, 2021)
11 (“Even absent an adverse credibility determination, a lack of
12 corroboration may be an independent basis for the denial of
13 relief.”). The agency reasonably declined to credit a
14 witness’s testimony given inconsistencies with Chen’s
15 testimony. And the agency was not compelled to credit an
16 unsworn form reporting how many times Chen had attended church
17 or her certificate of baptism. See Y.C. v. Holder, 741 F.3d
18 324, 334 (2d Cir. 2013) (“We defer to the agency’s
19 determination of the weight afforded to an alien’s
20 documentary evidence.”).
21 Given the demeanor, inconsistency, and corroboration
22 findings, the agency’s adverse credibility determination is
6
1 supported by substantial evidence. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii). Chen has therefore not shown that the
3 agency erred when it denied her application for asylum and we
4 deny the petition for review insofar as it challenges the
5 agency’s asylum determination.
6 We further hold that Chen’s claims for withholding of
7 removal and relief under the CAT are not properly before us
8 and dismiss the petition for review with respect to those
9 claims. The BIA concluded that because Chen had not
10 “specifically or meaningfully challenged the Immigration
11 Judge’s determinations that she did not provide sufficiently
12 credible testimony or corroborative evidence to carry her
13 burden of proving her eligibility for withholding of removal”
14 nor had she “specifically or meaningfully challenged the
15 determination that she was not eligible for protection under
16 the Convention Against Torture,” those “unchallenged issues
17 are not preserved” and are therefore waived. Cert. Admin. R.
18 3 (citing Matter of R-A-M-, 25 I & N Dec. 657, 658 n.2 (BIA
19 2012)). Additionally, Chen’s notice of appeal to the BIA
20 mentioned only her request for asylum, id. at 41, and her
21 brief to the BIA requested only that the BIA “find that [Chen]
22 should qualify for asylum,” id. at 20. We therefore may not
7
1 review the unexhausted claims for withholding of removal and
2 CAT relief. See Karaj v. Gonzales, 462 F.3d 113, 120-21 (2d
3 Cir. 2006) (holding that the applicants’ “failure to seek
4 review of the CAT claim deprives us of jurisdiction”); see
5 also Morales-Espania v. Lynch, 651 F. App’x 40, 42 (2d Cir.
6 2016) (dismissing claims for asylum and CAT relief because
7 “where a petitioner has failed to raise a category of relief
8 in his brief to the BIA, we are without jurisdiction to
9 consider any challenge to the denial of that relief”);
10 Terreros-Terreros v. Lynch, 638 F. App’x 103, 105 (2d Cir.
11 2016) (holding that, because “the BIA found that Terreros-
12 Terreros failed to challenge the denial of CAT relief in his
13 counseled brief, and deemed it waived,” we were “without
14 jurisdiction to consider any challenge to the denial of CAT
15 relief”).
16 For the foregoing reasons, the petition for review is
17 DENIED in part and DISMISSED in part. All pending motions and
18 applications are DENIED and stays VACATED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
8