         08-4998-ag
         Chen v. Holder
                                                                                        BIA
                                                                                     Hom, IJ
                                                                                A200 023 621
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 5 th day of January,           two thousand ten.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                BARRINGTON D. PARKER,
 9                GERARD E. LYNCH,
10                          Circuit Judges.
11       _______________________________________
12
13       XIU QIN CHEN,
14                Petitioner,
15
16                        v.                                    08-4998-ag
17                                                              NAC
18       ERIC H. HOLDER, Jr., U.S. ATTORNEY
19       GENERAL, *
20                  Respondent.
21       _______________________________________


                      *
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:         Thomas V. Massucci, New York, New
 2                           York.
 3
 4   FOR RESPONDENT:         Tony West, Assistant Attorney
 5                           General, Mary Jane Candaux,
 6                           Assistant Director, Achiezer
 7                           Guggenheim, Attorney, Office of
 8                           Immigration Litigation, Civil
 9                           Division, United States Department
10                           of Justice, Washington, D.C.

1        UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5        Petitioner Xiu Qin Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a September 12,

7    2008 order of the BIA affirming the June 21, 2006 decision

8    of Immigration Judge (“IJ”) Sandy Hom, insofar as it denies

9    her application for asylum and withholding of removal.    In

10   re Xiu Qin Chen, No. A200 023 621 (B.I.A. Sep. 12, 2008),

11   aff’g No. A200 023 621 (Immig. Ct. N.Y. City June 21, 2006).

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history of the case.

14       We review the agency’s factual findings, including

15   adverse credibility determinations, under the substantial

16   evidence standard.   8 U.S.C. § 1252(b)(4)(B); see also



                                   2
1    Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).     We

2    review de novo questions of law and the application of law

3    to undisputed fact.   See Bah v. Mukasey, 529 F.3d 99, 110

4    (2d Cir. 2008).

5        Because Chen filed her asylum application after May 11,

6    2005, the amendments made to the Immigration and Nationality

7    Act by the REAL ID Act of 2005 apply to her asylum

8    application.   See Pub. L. No. 109-13, § 101(h)(2), 119 Stat.

9    231, 305 (2005).   For asylum applications governed by the

10   REAL ID Act, the agency may, considering the totality of the

11   circumstances, base a credibility finding on an asylum

12   applicant’s demeanor, the plausibility of his or her

13   account, and inconsistencies in his or her statements,

14   without regard to whether they go “to the heart of the

15   applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); see

16   Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).

17       Substantial evidence supports the agency’s adverse

18   credibility determination.   Chen challenges the IJ’s finding

19   that her testimony was “scant” and “generalized.”     We have

20   found that when an IJ finds that an applicant’s testimony is

21   “vague,” he may fairly wonder whether it is fabricated, and

22   then probe for additional details, seeking to draw out


                                   3
1    inconsistencies.   Mei Chai Ye v. U.S. Dept. of Justice, 489

2    F.3d 517, 527 n. 9 (2d Cir. 2007).     This is precisely what

3    the IJ did in this case.

4        The IJ noted a discrepancy between Chen’s testimony and

5    asylum application concerning the date her colleague, Guo

6    Yin Xie, was arrested.     Specifically, although Chen’s asylum

7    application indicated that Xie was arrested on February 1,

8    2005, she testified that he was not arrested on that date.

9    There is no merit to Chen’s argument that the IJ erred by

10   failing to allow her an opportunity to explain this

11   discrepancy.   To the contrary, Chen was provided at least

12   two opportunities to explain it, failing to provide a

13   compelling explanation either time.     See Majidi v. Gonzales,

14   430 F.3d 77, 80-81 (2d Cir. 2005).     Because under the REAL

15   ID Act, the agency may base an adverse credibility

16   determination on any inconsistency, without regard to

17   whether it goes to the heart of the applicant’s claim, see

18   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

19   F.3d 162, 167 (2d Cir. 2008), the IJ reasonably relied on

20   this discrepancy to find Chen not credible.

21       Furthermore, contrary to Chen’s argument, the IJ did

22   not engage in impermissible speculation when he found


                                     4
1    implausible her claim that although government authorities

2    were seeking to arrest her, she had no difficulty obtaining

3    an official government document and departing China.       The IJ

4    found that this testimony undermined her assertion that she

5    was a “fugitive . . . wanted by the police for Falun Gong

6    engagement.”   This Court has held that an applicant’s

7    ability to obtain identification documents in his home

8    country while in hiding is not “a valid, cogent reason for a

9    negative credibility finding.”    See Secaida-Rosales v.

10   I.N.S., 331 F.3d 297, 310 (2d Cir. 2003), overruled on other

11   grounds by Xiu Xia Lin, 534 F.3d at 167.    However, we have

12   also upheld the agency’s finding that it was implausible

13   that a person seeking to flee from repression would

14   repeatedly put himself in situations where he encountered

15   legal authorities checking his identity, and possibly, his

16   illegal status.   Yan v. Mukasey, 509 F.3d 63, 68 (2d Cir.

17   2007).   In making his adverse credibility determination, the

18   IJ did not rely solely on Chen’s ability to obtain official

19   government documents and depart China without difficulty,

20   but also on her inconsistent testimony.    Accordingly,

21   considering the totality of the circumstances and all

22   relevant factors, the IJ’s credibility determination was


                                   5
1    supported by substantial evidence.   See 8 U.S.C.

2    § 1158(b)(1)(B)(iii).

3             For the foregoing reasons, the petition for review

4    is DENIED.   As we have completed our review, any stay of

5    removal that the Court previously granted in this petition

6    is VACATED, and any pending motion for a stay of removal in

7    this petition is DISMISSED as moot. Any pending request for

8    oral argument in this petition is DENIED in accordance with

9    Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34(b).

11
12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15                               By:____________________________




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