10-2228-ag
Xiao Chen Chen v. Holder

                               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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8th day of December, two thousand eleven.

PRESENT: JOHN M. WALKER, JR.,
         REENA RAGGI,
         DEBRA ANN LIVINGSTON,
                   Circuit Judges.
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XIAO CHEN CHEN,
                                                 Petitioner,
                             v.                                                         No. 10-2228-ag

ERIC H. HOLDER, JR., UNITED STATES
DEPARTMENT OF JUSTICE, ATTORNEY GENERAL,
                           Respondent.
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APPEARING FOR PETITIONER:                                  YEE LING POON (Robert Duk-Hwan Kim, on
                                                           the brief), Law Office of Yee Ling Poon, LLC,
                                                           New York, New York.

APPEARING FOR RESPONDENT:                                  EDWARD C. DURANT (Holly M. Smith, Senior
                                                           Litigation Counsel, Office of Immigration
                                                           Litigation, and Tony West, Assistant Attorney
                                                           General, Civil Division, on the brief), United
                                                           States Department of Justice, Washington, D.C.

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review of the decisions of the Board of Immigration Appeals

(“BIA”) is DENIED.
       Petitioner Xiao Chen Chen, a citizen of China, petitions for review of BIA decisions

affirming orders by Immigration Judges (“IJs”) Roxanne Hladylowycz and Steven R. Abrams

finding Chen ineligible for asylum, withholding of removal, or protection under the United

Nations Convention Against Torture (“CAT”). See In re Xiao Chen Chen, No. A077 957

739 (B.I.A. May 25, 2010), aff’g No. A077 957 739 (Immig. Ct. N.Y.C. Sept. 3, 2008); In

re Chen, Xiao Chen, No. A077 957 739 (B.I.A. Nov. 24, 2003), aff’g No. A077 957 739

(Immig. Ct. N.Y.C. May 3, 2002). Insofar as the BIA in its 2003 decision agreed with the

IJ’s adverse credibility determination as grounds for rejecting petitioner’s professed fear of

future persecution based on his past opposition to China’s family planning policy, we review

both the BIA and IJ decisions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.

2005). By contrast, in reviewing the denial of CAT relief based on fear derived from

petitioner’s illegal departure, we consider only the 2010 BIA decision, which assumed,

contrary to the IJ’s finding, that petitioner’s testimony was credible. See Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We apply the substantial-evidence standard to

factual findings, which we will uphold “unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009). On the other hand, we review questions of law

de novo. See Yanqin Weng v. Holder, 562 F.3d at 513. In applying these principles, we

assume familiarity with the facts and record of prior proceedings, which we reference only

as necessary to explain our decision.



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1.     Family Planning Policy

       The agency’s adverse credibility determination is supported by substantial evidence

of material inconsistencies and omissions. First, Chen initially stated that he registered his

marriage in November 2000, as indicated on his purported marriage certificate, but he

subsequently testified that his wife did not sign the marriage registration until January 2001.

Second, although Chen testified that his wife was forced to have an abortion on February 16,

2001, because he failed to pay for a birth permit, he made no mention of the abortion in the

letter he purportedly wrote to the local government on February 19, 2001, in which he asked

only whether the family planning cadres could require him to pay for a birth permit. Third,

although Chen testified on cross-examination that in February 2002, he learned that family

planning officials were searching for him, he did not mention this fact on direct examination,

nor did his wife in her letter dated March 2002.1




       1
          Admittedly, the alleged visits from the officials occurred after Chen submitted his
application. But Chen neither amended his asylum application to include this allegation nor
raised it in his direct examination, and his wife failed to mention the visits in her March 2002
letter, all of which the agency was permitted to consider in assessing Chen’s credibility
determination. See Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir. 2005) (holding
that adverse credibility determination was supported by petitioner’s delayed inclusion of
essential allegation in supplemental affidavit after omitting it from three previous asylum
applications). Even if we were to assume that the IJ erred in finding that Chen had omitted
this detail from his asylum application, however, that error does not require remand because
the record supports the IJ’s other inconsistency findings. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 335 (2d Cir. 2006) (holding that error does not require remand if
remand would be futile).

                                               3
       Although minor and isolated discrepancies may be insufficient to support an adverse

credibility finding, see Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000), the discrepancies

here relate to events at the heart of Chen’s claim that he opposed China’s family planning

policy and had a well-founded fear of persecution on that basis if he returned to China.

Where, as here,

       the IJ’s adverse credibility finding is based on specific examples in the record
       of inconsistent statements by the asylum applicant about matters material to his
       claim of persecution, or on contradictory evidence or inherently improbable
       testimony regarding such matters, a reviewing court will generally not be able
       to conclude that a reasonable adjudicator was compelled to find otherwise.

Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004) (internal quotation marks and

citations omitted), overruled on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494

F.3d 296, 305 (2d Cir. 2007) (en banc). Moreover, the agency did not err in rejecting Chen’s

explanations for the inconsistencies, as a reasonable fact-finder would not be compelled to

accept the explanations. See Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005).

       To the extent Chen’s claims for asylum, withholding of removal, and protection under

the CAT relied on his opposition to China’s family planning policy, the agency’s adverse

credibility determination necessarily precludes success on all three claims. See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Because the above findings of the IJ adequately

support the adverse credibility determination and formed the basis of the BIA’s decision, we

decline to address Chen’s challenges to the IJ’s additional findings with respect to his

credibility. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006).



                                              4
2.     CAT Protection Eligibility

       With respect to Chen’s CAT claim based on his illegal departure, we employ the same

assumptions as the BIA, i.e., that Chen’s testimony that he was beaten upon repatriation for

a prior illegal departure from China was credible. See Yan Chen v. Gonzales, 417 F.3d at

271–72. Nevertheless, we conclude that the BIA reasonably determined that Chen’s

testimony was insufficient to demonstrate that he was more likely than not to face torture if

returned to China. General evidence from State Department reports or human rights

organizations indicating that some repatriated Chinese have been subjected to torture was

insufficient to establish this likelihood. Rather, Chen was required to present “additional

particularized evidence to support [his] claim.” Mu Xiang Lin v. U.S. Dep’t of Justice, 432

F.3d 156, 160 (2d Cir. 2005). Insofar as Chen testified to his own past beating, the record

does not compel the conclusion that this incident rose to the level of past torture so as to

compel an inference of likely future torture. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130,

144 (2d Cir. 2003) (holding that evidence that petitioner was beaten before leaving China and

could be detained on repatriation was insufficient to vacate BIA denial of CAT relief); see

also Ramsameachire v. Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004) (“A CAT claim focuses

solely on the likelihood that the alien will be tortured if returned to his or her home country,

regardless of the alien’s subjective fears of persecution or his or her past experiences.”).

       Thus, contrary to Chen’s argument that the BIA disregarded his evidence, we

conclude that the BIA reasonably found that evidence insufficient to establish his eligibility

for CAT relief. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d at 338 n.17 (recognizing

                                               5
that court will presume that agency has considered all evidence unless record “compellingly

suggests otherwise”).

3.      Conclusion

        For the foregoing reasons, Chen’s 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 DENIED as

moot.

                            FOR THE COURT:
                            CATHERINE O’HAGAN WOLFE, CLERK OF COURT




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