        12-602
        Chen v. Holder
                                                                                       BIA
                                                                                LaForest, IJ
                                                                               A089 253 557
                          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.

 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 24th day of April, two thousand thirteen.
 5
 6      PRESENT:
 7               ROBERT A. KATZMANN,
 8               RICHARD C. WESLEY,
 9               GERARD E. LYNCH,
10                    Circuit Judges.
11      _____________________________________
12
13      JIAN ZHONG CHEN,
14               Petitioner,
15
16                       v.                                    12-602
17                                                             NAC
18      ERIC H. HOLDER, JR., UNITED STATES
19      ATTORNEY GENERAL,
20               Respondent.
21      _____________________________________
22
23      FOR PETITIONER:                Peter D. Lobel, New York, New York.
24
25      FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                     Attorney General; Terri J. Scadron,
27                                     Assistant Director; Hillel R. Smith,
28                                     Attorney, Office of Immigration
29                                     Litigation, Civil Division, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Jian Zhong Chen, a native and citizen of the People’s

 6   Republic of China, seeks review of a January 19, 2012, order

 7   of the BIA, affirming the September 23, 2009, decision of

 8   Immigration Judge (“IJ”) Brigitte LaForest, which denied his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).     In re Jian

11   Zhong Chen, No. A089 253 557 (B.I.A. Jan. 19, 2012), aff’g

12   No. A089 253 557 (Immig. Ct. N.Y. City Sept. 23, 2009).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history.

15       Under the circumstances of this case, we review both

16   the BIA’s and the IJ’s opinions.     Zaman v. Mukasey, 514 F.3d

17   233, 237 (2d Cir. 2008).   We review the agency’s legal

18   conclusions de novo and uphold its factual findings “if they

19   are supported by reasonable, substantial and probative

20   evidence in the record.”   Yanqin Weng v. Holder, 562 F.3d

21   510, 513 (2d Cir. 2009) (internal quotation marks omitted);

22   see also 8 U.S.C. § 1252(b)(4)(B).

23

                                   2
 1       To establish eligibility for asylum, an applicant must

 2   show that he has suffered past persecution or has a well-

 3   founded fear of future persecution “on account of race,

 4   religion, nationality, membership in a particular social

 5   group, or political opinion.”       8 U.S.C. § 1101(a)(42)(A).

 6   Where, as here, an asylum application is governed by the

 7   REAL ID Act, the agency may, after considering the totality

 8   of the circumstances, base an adverse credibility finding on

 9   the applicant’s demeanor, the plausibility of his account,

10   and inconsistencies in his statements, without regard to

11   whether they go “to the heart of the applicant’s claim.”         8

12   U.S.C. § 1158(b)(1)(B)(iii).

13       Substantial evidence supports the agency’s

14   determination that Chen did not testify credibly regarding

15   his family planning claim, and that determination formed an

16   adequate basis for denying relief.       “[A]n IJ may rely on any

17   inconsistency or omission in making an adverse credibility

18   determination as long as the totality of the circumstances

19   establishes that an asylum applicant is not credible.”          Xiu

20   Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)

21   (internal quotation marks omitted).       In finding Chen not

22   credible, the agency reasonably relied on multiple


                                     3
 1   discrepancies both within Chen’s testimony and between

 2   Chen’s testimony and other evidence in the record.

 3       For example, Chen’s testimony regarding his second

 4   daughter’s birthplace did not comport with the information

 5   on her birth certificate.   Chen conceded that the birth

 6   certificate was fake. See Siewe v. Gonzales, 480 F.3d 160,

 7   170 (2d Cir. 2007) (noting that once an IJ concludes that a

 8   document is false, he or she is “free to deem suspect other

 9   documents (and to disbelieve other testimony) that depend

10   for probative weight upon [the applicant’s] veracity”).

11       Additionally, there were inconsistencies between Chen’s

12   testimony and a letter from his wife describing an alleged

13   May 2004 assault by Chinese family planning officials.

14   Contrary to Chen’s argument, the agency was not required to

15   find that a medical record he submitted rehabilitated his

16   testimony about the assault, as the report confirmed an

17   injury but provided no information about the motive behind

18   the attack or the identity of the individuals who

19   perpetrated it.   See Biao Yang v. Gonzales, 496 F.3d 268,

20   273 (2d Cir. 2007) (holding that a failure to corroborate,

21   and thereby rehabilitate, testimony that has been called




                                   4
 1   into question can bear negatively on an applicant’s

 2   credibility).

 3       Chen also failed to provide a consistent account of the

 4   circumstances surrounding his alleged escape from detention

 5   in May 2005, as well as when and where his wife was in

 6   hiding following that escape.       Finally, Chen’s testimony

 7   that he was in hiding continuously from May 2005 until March

 8   2007 is undermined by a residence identification card that

 9   was issued to him in April 2006.

10       The agency reasonably concluded that Chen failed to

11   provide compelling explanations for these discrepancies.        “A

12   petitioner must do more than offer a plausible explanation

13   for his inconsistent statements to secure relief; he must

14   demonstrate that a reasonable fact-finder would be compelled

15   to credit his testimony.”   Majidi v. Gonzales, 430 F.3d 77,

16   80 (2d Cir. 2005) (internal quotation marks omitted).       Chen

17   claims that he suffers from a medical condition that impairs

18   his memory and renders him incapable of providing clear and

19   consistent testimony, but the medical record he submitted to

20   support that claim indicates only that Chen received

21   treatment for upper back and knee pain in May 2004.

22   Accordingly, because a reasonable fact-finder would not be


                                     5
 1   compelled to excuse the many discrepancies in Chen’s

 2   testimony, the agency’s adverse credibility determination is

 3   supported by substantial evidence.    See Biao Yang, 496 F.3d

 4   at 273.

 5       Chen contends that his claim of a well-founded fear of

 6   future persecution is not precluded by the adverse

 7   credibility finding.    This argument is without merit, as the

 8   only asserted basis for such a fear is the past persecution

 9   he allegedly suffered for violating China’s family planning

10   policy.   See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.

11   2006) (“[A]n applicant may prevail on a theory of future

12   persecution despite an IJ’s adverse credibility ruling as to

13   past persecution, so long as the factual predicate of the

14   applicant’s claim of future persecution is independent of

15   the testimony that the IJ found not to be credible.”).

16       Therefore, the agency’s denial of asylum was not

17   erroneous.    Nor was its denial of withholding of removal and

18   CAT relief.    A withholding claim is precluded when it is

19   “based on the very fact, or set of facts, that the IJ found

20   not to be credible” with respect to an asylum claim.     Id. at

21   156 (withholding of removal). Similarly, a CAT claim fails

22   where the agency has made an “affirmable finding” that a set


                                    6
 1   of facts supporting “the only potentially valid basis” for

 2   the claim have not been established.   Xue Hong Yang v. U.S.

 3   Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).    Because

 4   all three of Chen’s claims share the same factual predicate,

 5   denial of each was supported by the agency’s adverse

 6   credibility finding.

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   Chen’s pending motion for a stay of removal is

 9   DENIED as moot.

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk




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