         13-1547
         Chen v. Holder
                                                                                       BIA
                                                                                  Sichel, IJ
                                                                               A088 527 577
                           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 5th day of November, two thousand fourteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                SUSAN L. CARNEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       Chi Man Chen,
14                Petitioner,
15
16                        v.                                    13-1547
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Alexander Kwok-Ho Yu, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Blair T. O’Connor,
27                                     Assistant Director; Juria L. Jones,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
 1                            States Department of Justice,
 2                            Washington, D.C.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Chi Man Chen, a native and citizen of the People’s

 9   Republic of China, seeks review of a March 26, 2013,

10   decision of the BIA affirming the November 23, 2010,

11   decision of Immigration Judge (“IJ”) Helen Sichel, which

12   denied his application for asylum, withholding of removal,

13   and relief under the Convention Against Torture (“CAT”).      In

14   re Chi Man Chen, No. A088 527 577 (B.I.A. March 26, 2013),

15   aff’g No. A088 527 577 (Immig. Ct. N.Y. City November 23,

16   2010).   We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18        Under the circumstances of this case, we have

19   considered both the IJ’s and the BIA’s opinions “for the

20   sake of completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237

21   (2d Cir. 2008).   The applicable standards of review are well

22   established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

23   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

24


                                    2
 1       For asylum applications, like Chen’s, governed by the

 2   REAL ID Act of 2005, the agency may, “[c]onsidering the

 3   totality of the circumstances,” base a credibility finding

 4   on an asylum applicant’s “demeanor, candor, or

 5   responsiveness,” the plausibility of his account, and

 6   inconsistencies in his statements, without regard to whether

 7   they go “to the heart of the applicant’s claim,” so long as

 8   they reasonably support an inference that the applicant is

 9   not credible.   8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia

10   Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).      We “defer

11   . . . to an IJ’s credibility determination unless, from the

12   totality of the circumstances, it is plain that no

13   reasonable fact-finder could make such an adverse

14   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.     In this

15   case, the agency reasonably based its adverse credibility

16   determination on Chen’s admission that he had been dishonest

17   about his employment, the contradictions in his testimony,

18   and the numerous inconsistencies between his testimony and

19   his asylum application.

20       The IJ found that Chen was not credible because he

21   failed to explain the discrepancies between: (1) his

22   testimony that he attempted to stop the forced sterilization


                                   3
 1   of his wife, a circumstance he failed to mention in his

 2   asylum application (or in a subsequent affidavit making

 3   corrections to the application); (2) his admission to the IJ

 4   that he had falsely claimed to own a factory solely in order

 5   to obtain a visa, and his earlier testimony during the

 6   removal proceedings that actually he did own a factory; (3)

 7   his testimony that his wife stayed in the hospital for a

 8   week following the sterilization, and a letter from his wife

 9   stating that he had taken her home on his bike the following

10   day; and (4) his testimony that a doctor was among those who

11   came to take his wife away for sterilization, and his

12   subsequent testimony (after being asked why he failed to

13   mention that fact on his asylum application) that no doctors

14   were among those who came to take his wife away.     The IJ

15   also noted Chen's testimony that he maintained his

16   employment at a construction company owned by the town

17   government even after his alleged violation of the

18   population control policy and his resistence to

19   sterilization, and that his wife was able to remove her own

20   IUD by simply stretching out her hands.

21       Chen argues that the IJ's adverse credibility

22   determination was based on "impermissible speculation and



                                  4
 1   personal conjecture," and that the discrepancies between his

 2   asylum application and testimony were the result of honest

 3   mistakes or misunderstandings, not surreptitious motives.

 4   However, there is no indication in the record that the

 5   adverse credibility finding was based on impermissible

 6   factors; and the agency need not credit an applicant’s

 7   explanations for inconsistent testimony unless those

 8   explanations would compel a reasonable fact-finder to do so.

 9   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

10       The totality of the circumstances supports the agency’s

11   adverse credibility determination.    See 8 U.S.C.

12   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.      The

13   adverse credibility determination is dispositive.

14       Because the only evidence of a threat to Chen’s life or

15   freedom depended upon his credibility, the adverse

16   credibility finding necessarily precludes success on his

17   claims for asylum, withholding of removal, and CAT relief.

18   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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

23   this petition is DISMISSED as moot.   Any pending request for
                                   5
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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