     14-699
     Chen v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 166 832
                          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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   30th day of July, two thousand fifteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            JOSÉ A. CABRANES,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   LUO HUANG CHEN,
14            Petitioner,
15
16                   v.                                              14-699
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,*
20
21            Respondent.
22   _____________________________________

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Attorney General Loretta E. Lynch is automatically substituted
     for former Attorney General Eric H. Holder, Jr. as Respondent.
 1   FOR PETITIONER:             Thomas V. Massucci, New York,
 2                               New York.
 3
 4   FOR RESPONDENT:             Joyce R. Branda, Acting Assistant
 5                               Attorney General; Linda S. Wernery,
 6                               Assistant Director; Gerald M.
 7                               Alexander, Trial Attorney, Office of
 8                               Immigration Litigation, United
 9                               States Department of Justice,
10                               Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

14   ORDERED, ADJUDGED, AND DECREED that the petition for review is

15   GRANTED.

16       Petitioner Luo Huang Chen, a native and citizen of the

17   People’s Republic of China, seeks review of a February 4, 2014,

18   decision of the BIA affirming an April 9, 2012, decision of an

19   Immigration Judge (“IJ”) denying Chen’s application for asylum,

20   withholding of removal, and relief under the Convention Against

21   Torture (“CAT”).   In re Luo Huang Chen, No. A200 166 832 (B.I.A.

22   Feb. 4, 2014), aff’g No. A200 166 832 (Immig. Ct. N.Y. City Apr.

23   9, 2012).    We assume the parties’ familiarity with the

24   underlying facts and procedural history in this case.

25       Under the circumstances of this case, we review the IJ’s

26   decision as modified by the BIA, and consider only the single
                                    2
1    basis on which the BIA affirmed the IJ’s adverse credibility

2    determination.       See Xue Hong Yang v. U.S. Dep’t of Justice, 426

3    F.3d 520, 522 (2d Cir. 2005).             The applicable standards of

4    review are well established.         See 8 U.S.C. § 1252(b)(4)(B); see

5    also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

6         For asylum applications such as Chen’s, governed by the

7    REAL ID Act of 2005, the agency may, considering the totality

8    of   the   circumstances,     base    a    credibility   finding   on   an

9    applicant’s    “demeanor,      candor,       or   responsiveness,”      the

10   plausibility    of    his   account,      and   inconsistencies    in   his

11   statements, so long as they reasonably support an inference that

12   the applicant is not credible.           8 U.S.C. § 1158(b)(1)(B)(iii);

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

14   We defer “to an IJ’s credibility determination unless, from the

15   totality of the circumstances, it is plain that no reasonable

16   fact-finder could make such an adverse credibility ruling.”

17   Xiu Xia Lin, 534 F.3d at 167.         In this case, the inconsistency

18   the IJ identified does not reasonably support an inference that

19   Chen was incredible.




                                          3
1        The agency concluded that Chen was not credible because he

2    claimed that he fled China after his arrest in May 2010, but

3    the documentary evidence revealed prior departure plans – a

4    student visa application approved in March 2010.    Although the

5    agency   labeled   this     an   inconsistency,   there   is   no

6    contradiction: Chen never stated that the only reason he left

7    China was because he was arrested or that he had not considered

8    leaving China prior to his arrest.       Moreover, he testified

9    consistently that his parents and an agent handled the student

10   visa application process, and that he was not involved.        He

11   testified that it was not until June or July that he first talked

12   to the agent and received the letter of acceptance from the

13   American university.      This testimony is consistent with the

14   certificate of eligibility for a student visa, which was signed

15   by a school official on March 31, 2010, but not signed by Chen

16   until June 1, 2010.    That Chen’s parents began planning his

17   departure prior to his arrest does not, in and of itself,

18   undermine his claim that he was persecuted because of his

19   religion and fears persecution on return.




                                      4
1        During cross-examination, Chen testified that neither he

2    nor his parents contacted the agent before his arrest.             This

3    testimony    conflicts   with   the   date   on   the   approved   visa

4    application; but standing alone, it is not enough to support

5    an adverse credibility determination.

6        Because the case is being remanded, we do not consider

7    whether the BIA abused its discretion in denying Chen’s motion

8    to remand.    See Koudriachova v. Gonzales, 490 F.3d 255, 264 (2d

9    Cir. 2007).

10       For the foregoing reasons, the petition for review is

11   GRANTED.

12                                   FOR THE COURT:
13                                   Catherine O=Hagan Wolfe, Clerk




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