     17-2340
     Chen v. Barr
                                                                                   BIA
                                                                              Wright, IJ
                                                                           A206 071 811

                         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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 29th day of October, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   YING CHEN,
14
15                        Petitioner,
16
17                  v.                                           17-2340
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21
22                 Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                    Gary J. Yerman, New York, NY.
26
27   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
28                                      Attorney General; Carly McIntyre,
1                               Assistant Director; Nancy E.
2                               Friedman, Senior Litigation
3                               Counsel, Office of Immigration
4                               Litigation, United States
5                               Department of Justice, Washington,
6                               DC.
7
8        UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DISMISSED in part, and DENIED in part.

12       Petitioner Ying Chen, a native and citizen of China,

13   seeks review of a July 12, 2017, decision of the BIA affirming

14   an October 6, 2016, decision of an Immigration Judge (“IJ”)

15   denying asylum, withholding of removal, and relief under the

16   Convention Against Torture (“CAT”).     In re Ying Chen, No.

17   A206 071 811 (B.I.A. Jul. 12, 2017), aff’g No. A206 071 811

18   (Immig. Ct. N.Y. City Oct. 6, 2016).   We assume the parties’

19   familiarity with the underlying facts and procedural history

20   in this case.

21       Under the circumstances of this case, we have considered

22   both the IJ’s and the BIA’s decisions “for the sake of

23   completeness.”   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

24   524, 528 (2d Cir. 2006).

25

26
                                   2
1    Asylum – One-Year Filing Deadline

2          An alien is ineligible for asylum “unless the alien

3    demonstrates    by     clear     and   convincing    evidence     that    the

4    application has been filed within 1 year after the date of

5    the   alien’s   arrival        in   the    United   States.”      8 U.S.C.

6    § 1158(a)(2)(B).        Our jurisdiction to review the agency’s

7    findings regarding the timeliness of an asylum application is

8    limited to constitutional claims or questions of law.                    See 8

9    U.S.C.   §§   1158(a)(3),        1252(a)(2)(D).          Such   claims    and

10   questions must be colorable.           Barco-Sandoval v. Gonzales, 516

11   F.3d 35, 40-41 (2d Cir. 2008); Xiao Ji Chen v. U.S. Dep’t of

12   Justice, 471 F.3d 315, 329 (2d Cir. 2006).                 Chen raises no

13   colorable questions of law.

14         Chen contends that the agency erred in relying on her

15   divorce decree as evidence that she may have been in the

16   United States as early as 2012.              She argues that the word

17   “America” in the decree could have meant Mexico, and that (in

18   any event) the date was the result of her mother’s error.

19   While    a   serious    mischaracterization         of   the    record    may

20   constitute legal error, the alleged error of law is not

21   colorable     because      the      record    supports      the   agency’s

22   interpretation.        See Mendez v. Holder, 566 F.3d 316, 323 (2d

                                            3
1    Cir. 2009).       Chen never testified that she worked while in

2    Mexico;    she    generally    referred        to   the    United       States   as

3    America; and she never used America to refer to Mexico.                          See

4    Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where

5    there    are     two   permissible     views        of    the     evidence,      the

6    factfinder’s       choice     between      them          cannot     be    clearly

7    erroneous.” (quoting Anderson v. Bessemer City, 470 U.S. 564,

8    574 (1985))).          To the extent she challenges the agency’s

9    reliance on her mother’s mistake, she is arguing over the

10   weight    the     agency     gave    the       evidence,        which    we   lack

11   jurisdiction to review.         See Xiao Ji Chen, 471 F.3d at 329,

12   342.

13   Withholding and CAT – Adverse Credibility

14          There is no time restriction for seeking withholding of

15   removal and CAT relief.             The agency denied that relief on

16   credibility       grounds,    which       we     review     for      substantial

17   evidence.        See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

18   Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering the

19   totality of the circumstances, and all relevant factors, a

20   trier of fact may base a credibility determination on . . .

21   the consistency between the applicant’s . . . written and

22   oral statements . . . , the internal consistency of each such

                                           4
1    statement, [and] the consistency of such statements with

2    other evidence of record . . . without regard to whether an

3    inconsistency, inaccuracy, or falsehood goes to the heart of

4    the   applicant’s      claim,     or   any    other       relevant   factor.”

5    8 U.S.C. § 1158(b)(1)(B)(iii).              “We defer . . . to an IJ’s

6    credibility determination unless, from the totality of the

7    circumstances, it is plain that no reasonable fact-finder

8    could make such an adverse credibility ruling.”                  Xiu Xia Lin

9    v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

10   Gao, 891 F.3d at 76.         The adverse credibility determination

11   is supported by substantial evidence.

12         The     agency    reasonably         relied    on     Chen’s    varying

13   descriptions      of   the    incident      in     which   family    planning

14   authorities attempted to transport her to the hospital for

15   sterilization.         See   8   U.S.C.     § 1158(b)(1)(B)(iii).         Her

16   asylum      application,     interview,      and    testimony    gave   three

17   different locations for where she was when the authorities

18   came and were inconsistent about who followed her.                   And her

19   testimony included details of a physical altercation between

20   authorities and her family members that were omitted from her

21   asylum statement.        See Ming Zhang v. Holder, 585 F.3d 715,

22   726 (2d Cir. 2009) (holding that the agency may “draw an

                                            5
1    adverse inference about petitioner’s credibility based, inter

2    alia, on her failure to mention” important details or events

3    in prior statements); Lianping Li v. Lynch, 839 F.3d 144, 150

4    (2d Cir. 2016) (upholding adverse credibility determination

5    where   “application        did   not       simply    omit     incidents      of

6    persecution . . . [but rather] described the same incidents

7    of   persecution     differently”).           Chen    had     no    compelling

8    explanations       for   these    discrepancies.             See    Majidi    v.

9    Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

10   do   more   than    offer    a    plausible     explanation         for    h[er]

11   inconsistent       statements     to       secure    relief;       [s]he     must

12   demonstrate that a reasonable fact-finder would be compelled

13   to   credit    h[er]     testimony.”        (internal    quotation         marks

14   omitted)).     Although the agency should not rely too heavily

15   on minor omissions, the information Chen added about her

16   family’s resistance did not merely supplement her account but

17   amounted to a different, more aggressive version of the event.

18   See Hong Fei Gao, 891 F.3d at 78-82 (holding that “probative

19   value of a witness’s prior silence on particular facts depends

20   on whether those facts are ones the witness would reasonably

21   have been expected to disclose” and that “[o]missions need

22   not go to the heart of a claim to be considered in adverse

                                            6
1    credibility determinations, but they must still be weighed in

2    light of the totality of the circumstances and in the context

3    of the record as a whole.”).

4        Having     questioned        Chen’s      credibility,      the     agency

5    reasonably     relied     on    her    failure      to   rehabilitate     her

6    testimony with reliable corroborating evidence.                      See Biao

7    Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

8    applicant’s failure to corroborate his or her testimony may

9    bear on credibility, because the absence of corroboration in

10   general makes an applicant unable to rehabilitate testimony

11   that has already been called into question.”).                  The agency

12   declined to afford significant weight to letters from Chen’s

13   mother and friend in China.            That was not error because the

14   letters lacked detail, and the authors were unavailable for

15   cross-examination.        See Y.C. v. Holder, 741 F.3d 324, 332,

16   334 (2d Cir. 2013) (holding that “[w]e generally defer to the

17   agency’s     evaluation    of    the       weight   to   be   afforded     an

18   applicant’s documentary evidence” and deferring to agency’s

19   decision to afford little weight to spouse’s letter).                  Chen’s

20   mother’s letter also was inconsistent with Chen’s account of

21   her escape from the family planning officials:                Chen said she

22   ran away after convincing the officials to stop the van;

                                            7
1    Chen’s mother’s account suggests that Chen escaped during the

2    altercation between authorities and family members at the

3    house.

4           Given    the   multiple   inconsistencies    and   the   lack   of

5    reliable corroboration, the adverse credibility determination

6    is supported by substantial evidence.            See Xiu Xia Lin, 534

7    F.3d    at     165-66.    That   determination     is   dispositive    of

8    withholding of removal and CAT relief because both claims are

9    based on the same factual predicate.         See Paul v. Gonzales,

10   444 F.3d 148, 156-57 (2d Cir. 2006).

11          For the foregoing reasons, the petition for review is

12   DISMISSED as to the asylum claim, and DENIED in remaining

13   part.    As we have completed our review, any stay of removal

14   that the Court previously granted in this petition is VACATED,

15   and any pending motion for a stay of removal in this petition

16   is DISMISSED as moot.       Any pending request for oral argument

17   in this petition is DENIED in accordance with Federal Rule of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34.1(b).

20                                     FOR THE COURT:
21                                     Catherine O’Hagan Wolfe
22                                     Clerk of Court



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