         12-3549
         Chen v. Holder
                                                                                        BIA
                                                                                   Videla, IJ
                                                                               A089 922 641
                            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 16th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROSEMARY S. POOLER,
 9                REENA RAGGI,
10                     Circuit Judges.
11       _____________________________________
12
13       YAN CHEN,
14                        Petitioner,
15
16                        v.                                    12-3549
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                 Norman Kwai Wing Wong, New York, New
24                                       York.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
27                                       Attorney General; Ernesto H. Molina,
28                                       Jr., Assistant Director; D. Nicholas
29                                       Harling, Trial Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       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 motion to supplement

 4   the record is GRANTED and the petition for review is DENIED.

 5       Yan Chen, a native and citizen of China, seeks review

 6   of an August 13, 2012, decision of the BIA affirming the

 7   June 30, 2011, decision of Immigration Judge (“IJ”) Gabriel

 8   C. Videla, which denied her application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).     In re Yan Chen, No. A089 922 641

11   (B.I.A. Aug. 13, 2012), aff’g No. A089 922 641 (Immig. Ct.

12   N.Y. City June 30, 2011).     We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Because the BIA adopted and affirmed the IJ’s decision,

16   we have reviewed the IJ’s decision as supplemented by the

17   BIA decision.     See Yan Chen v. Gonzales, 417 F.3d 268, 271

18   (2d Cir. 2005).     The applicable standards of review are

19   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

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

21       For applications such as this one, governed by the

22   amendments made to the Immigration and Nationality Act by

23   the REAL ID Act of 2005, “[c]onsidering the totality of the

                                     2
 1   circumstances,” the agency may base a credibility

 2   determination on the demeanor of the applicant as well as

 3   the consistency in the applicant’s statements and between

 4   those statements and record evidence, regardless of whether

 5   an inconsistency “goes to the heart of the applicant’s

 6   claim.”     8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin

 7   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

 8       The agency reasonably relied on Chen’s tendency to

 9   change her testimony when confronted with conflicting

10   evidence.     See Xiu Xia Lin, 534 F.3d at 167.   First, Chen

11   testified that she had never had a passport in China, but

12   later admitted that she did have one.     Second, Chen

13   initially stated that she had only lived in New York since

14   arriving in the United States, but later admitted that she

15   spent the majority of her time in Virginia and only commuted

16   to New York once a week for church.     This amended testimony

17   was not corroborated by Chen’s witness, an elder in her

18   church, who stated that he had no idea Chen was commuting

19   from so far away to attend the weekly service.     Because, in

20   addition to the fact that the agency may rely on any

21   inconsistency in reaching an adverse credibility

22   determination, Chen’s church attendance is directly material


                                     3
 1   to the authenticity of her claim that she practices

 2   Christianity and has a well-founded fear of future

 3   persecution on that basis, the agency did not err in relying

 4   on it to find Chen not credible under the totality of the

 5   circumstances.    See Xiu Xia Lin, 534 F.3d at 167; see

 6   also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)

 7   (concluding that one instance of false testimony can infect

 8   the balance of the evidence).

 9       The agency’s adverse credibility determination is

10   further supported by its demeanor finding – that Chen had a

11   tendency to laugh or smile when confronted with inconsistent

12   testimony.   We afford “particular deference” to credibility

13   determinations based on observation of the applicant’s

14   demeanor.    See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d

15   99, 109 (2d Cir. 2006); Jin Chen v. U.S. Dep’t of Justice,

16   426 F.3d 104, 113 (2d Cir. 2005).

17       Given the inconsistencies and the demeanor finding, the

18   adverse credibility determination is supported by

19   substantial evidence.    See Xiu Xia Lin, 534 F.3d at 167.   As

20   the only evidence of a threat to Chen’s life or freedom

21   depended upon her credibility, the adverse credibility

22   determination is dispositive of her claims for asylum,


                                     4
 1   withholding of removal, and CAT relief, and we decline to

 2   reach Chen’s challenge to the agency’s alternate burden of

 3   proof finding. See Paul v. Gonzales, 444 F.3d 148, 156 (2d

 4   Cir. 2006); INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per

 5   curiam).

 6       The motion to supplement the record is GRANTED and the

 7   petition for review is DENIED.

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




                                  5
