         13-924
         Chen v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 475 403


                               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
 2       Appeals for the Second Circuit, held at the Thurgood Marshall
 3       United States Courthouse, 40 Foley Square, in the City of New
 4       York, on the 6th day of November, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       YING QIANG CHEN,
14
15                              Petitioner,
16
17                        v.                                    13-924
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED
21       STATES ATTORNEY GENERAL,
22
23                              Respondent.
24
25       _____________________________________
26
27       FOR PETITIONER:                 Nataliya I. Gavlin, New York, New
28                                       York.
 1   FOR RESPONDENT:           Stuart F. Delery, Assistant Attorney
 2                             General; Terri J. Scadron, Assistant
 3                             Director; Anthony W. Norwood, Senior
 4                             Litigation Counsel, Office of
 5                             Immigration Litigation, United
 6                             States Department of Justice,
 7                             Washington D.C.

 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 DENIED.

12       Ying Qiang Chen, a native and citizen of China, seeks

13   review of a February 22, 2013, decision of the BIA affirming

14   the December 14, 2010, decision of an Immigration Judge

15   (“IJ”), which denied his application for asylum, withholding

16   of removal, and relief pursuant to the Convention Against

17   Torture (“CAT”).     In re Ying Qiang Chen, No. A087 475 403

18   (B.I.A. Feb. 22, 2013), aff’g No. A087 475 403 (Immig. Ct.

19   N.Y. City Dec. 14, 2010).     We assume the parties’

20   familiarity with the underlying facts and procedural history

21   in this case.

22       Under the circumstances of this case, we have reviewed

23   the IJ’s decision as modified by the BIA decision.     See Xue

24   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

25   Cir. 2005).     The applicable standards of review are well


                                     2
 1   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

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

 3       We conclude that the agency’s findings provide

 4   substantial evidence to support the adverse credibility

 5   determination.    For asylum applications like Chen’s,

 6   governed by the REAL ID Act of 2005, the agency may,

 7   “[c]onsidering the totality of the circumstances,” base a

 8   credibility determination on an asylum applicant’s demeanor,

 9   the plausibility of his account, and inconsistencies in his

10   statements, “without regard to whether” they go “to the

11   heart of the applicant’s claim.”     8 U.S.C.

12   § 1158(b)(1)(B)(iii).    We “defer therefore to [the agency’s]

13   credibility determination unless, from the totality of the

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

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

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

17       The agency reasonably based its adverse credibility

18   determination on the inconsistencies between Chen’s credible

19   fear interview and statements he made in his asylum

20   application and at his hearing.     A comparison shows

21   substantial discrepancies.    Chen initially stated he fled

22   China because his girlfriend was forced to have an abortion,

23   but he applied for asylum based on that forced abortion and

                                     3
 1   alleged past persecution as a Falun Gong practitioner,

 2   including an arrest, beating, and detention.   He explained

 3   that he failed to disclose his Falun Gong activities at the

 4   interview because: (1) he only recounted the most recent

 5   event; (2) “there [was not] enough time”; (3) he was told to

 6   leave the interview before he could finish; and (4) he was

 7   nervous.   Given that Chen was asked during his interview

 8   whether there was anything else that was important to his

 9   claim, the agency was not required to credit these

10   explanations.   See Majidi v. Gonzales, 430 F.3d 77, 80-81

11   (2d Cir. 2005) (holding that the agency need not credit an

12   applicant’s explanations for inconsistent testimony unless

13   those explanations would compel a reasonable fact-finder to

14   do so).1

15       Moreover, the agency reasonably relied on a further

16   inconsistency with respect to Chen’s arrest in China for

17   Falun Gong.   Chen stated at his interview that he had never

18   been arrested for a serious crime, but stated in his asylum



            1
             Chen also claimed that he was beaten by U.S. border
       patrol agents, and suggests that this played a role in
       the omission of his Falun Gong activities at his initial
       interview. However, as found by the agency, there is no
       evidence to support this accusation, he did not mention
       it in his credible fear interview, and he did not file a
       complaint.

                                   4
 1   application and testimony that he had been arrested in China

 2   for his Falun Gong activities.       The agency reasonably

 3   rejected Chen’s explanation that he forgot about the arrest

 4   and he was nervous at the interview, particularly given his

 5   ability to remember the seemingly less serious beating by

 6   family planning authorities.

 7        Finally, the agency based its adverse credibility

 8   determination in part on Chen’s demeanor and responses,

 9   finding that Chen’s answers were “non-responsive and

10   evasive,” and, when asked why he failed to mention Falun

11   Gong during credible fear interview, he was “hesitant and

12   vague.”   We give “particular deference to credibility

13   determinations based on the adjudicator’s observation of the

14   applicant’s demeanor.”   Shu Wen Sun v. BIA, 510 F.3d 377,

15   381 (2d Cir. 2007) (per curiam) (internal quotation marks

16   and citation omitted).

17        Having called Chen’s credibility into question, the

18   agency reasonably determined that his failure to corroborate

19   his girlfriend’s abortion and his Falun Gong activities

20   further undermined his asylum claim.       See 8 U.S.C.

21   § 1158(b)(1)(B)(ii) (providing that “[t]he testimony of the

22   applicant may be sufficient to sustain the applicant’s

23   burden without corroboration, but only if the applicant

                                      5
 1   satisfies the trier of fact that the applicant’s testimony

 2   is credible, is persuasive, and refers to specific facts

 3   sufficient to demonstrate that the applicant is a refugee”

 4   (emphasis added)).   “An applicant’s failure to corroborate

 5   [his] testimony may bear on credibility, because the absence

 6   of corroboration in general makes an applicant unable to

 7   rehabilitate testimony that has already been called into

 8   question.”   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

 9   Cir. 2007) (per curiam).   It was reasonable for the agency

10   to reject Chen’s explanation that he had lost contact with

11   his former girlfriend, because he made no attempt to contact

12   her or at least did not describe any such attempt.     See 8

13   U.S.C. § 1254(b)(4) (“No court shall reverse a determination

14   made by a trier of fact with respect to the availability of

15   corroborating evidence . . . [unless] a reasonable trier of

16   fact is compelled to conclude that such corroborating

17   evidence is unavailable.”).   Moreover, as the agency noted,

18   the only corroborating evidence Chen submitted was a letter

19   from his mother, an interested witness who was not subject

20   to cross-examination.   See Matter of H-L-H & Z-Y-Z, 25 I. &

21   N. Dec. 209, 215 (BIA   2010) (giving diminished evidentiary

22   weight to letters from relatives because they were

23   “interested witnesses who were not subject to cross-

                                   6
 1   examination”), rev’d on other grounds by Hui Lin Huang v.

 2   Holder, 677 F.3d 130 (2d Cir. 2012); see also Xiao Ji Chen

 3   v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)

 4   (holding weight accorded to applicant’s evidence lies

 5   largely within agency discretion).

 6          Given that Chen’s omission, inconsistencies, and lack

 7   of corroboration all relate to the main bases of his asylum

 8   claim, the totality of the circumstances supports the

 9   adverse credibility determination.    Because all of Chen’s

10   claims depend on the same factual predicate, the adverse

11   credibility determination is dispositive of asylum,

12   withholding of removal, and CAT relief.    Paul v. Gonzales,

13   444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang, 426 F.3d at

14   523.
15
16          For the foregoing reasons, the petition for review is

17   DENIED.    As we have completed our review, the pending motion

18   for a stay of removal in this petition is DENIED as moot.

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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