         10-3549
         Chen v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A089 915 688
                               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 28th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                        JON O. NEWMAN,
 8                        DENNIS JACOBS,
 9                        PIERRE N. LEVAL,
10                             Circuit Judges.
11
12       _____________________________________
13
14       SONG MEI CHEN,
15                Petitioner,
16
17                        v.                                    10-3549
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:                Michael Brown, New York, New York.
26
27       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney

         07162014-B1-1
 1                             General; Paul Fiorino, Senior
 2                             Litigation Counsel; Katherine A.
 3                             Smith, Trial Attorney, Office of
 4                             Immigration Litigation, United
 5                             States Department of Justice,
 6                             Washington, D.C.
 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 DENIED.

12           Petitioner Song Mei Chen, a native and citizen of the

13   People’s Republic of China, seeks review of an August 25,

14   2010, decision of the BIA, affirming the December 18, 2009,

15   decision of Immigration Judge (“IJ”) Alan Vomacka, denying

16   her application for asylum, withholding of removal, and

17   relief under the Convention Against Torture (“CAT”).     In re

18   Song Mei Chen, No. A089 915 688 (B.I.A. Aug. 25, 2010),

19   aff’g No. A089 915 688 (Immig. Ct. N.Y. City Dec. 18, 2009).

20   We assume the parties’ familiarity with the underlying facts

21   and procedural history of this case.

22           Under the circumstances of this case, we have reviewed

23   both the IJ’s and the BIA’s opinions “for the sake of

24   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

25   2008) (quotation marks and citations omitted).     The

26   applicable standards of review are well established.     See

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 1   8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,

 2   546 F.3d 138, 157-58 (2d Cir. 2008); Xiu Xia Lin v. Mukasey,

 3   534 F.3d 162, 165-66 (2d Cir. 2008).

 4   I.      Past Persecution

 5           The agency may, considering the totality of the

 6   circumstances, base a credibility finding on inconsistencies

 7   in an applicant’s statements and other record evidence

 8   without regard to whether they go “to the heart of the

 9   applicant’s claim.”        8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

10   Lin, 534 F.3d at 163-64.        Substantial evidence supports the

11   agency’s determination that Chen was not credible as to her

12   claim that family planning officials had forced her to

13   terminate a pregnancy.

14           Chen admitted that neither she nor her husband

15   mentioned her alleged forced abortion during her husband’s

16   removal proceedings, in which he sought asylum based on his

17   fear of persecution under China’s coercive population

18   control program.     See Xiu Xia Lin, 534 F.3d at 166 n.3.

19   That omission was significant because, at the time of his

20   application, Chen’s husband would have qualified for asylum

21   based on Chen’s alleged forced abortion.        See Shi Liang Lin

22   v. U.S. Dep’t of Justice, 494 F.3d 296, 299 (2d Cir. 2007).


     07162014-B1-1                      3
 1   Chen did not provide a compelling explanation for this

 2   omission.       See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

 3   2005).

 4           Having questioned Chen’s credibility, the agency

 5   reasonably relied further on her failure to provide certain

 6   evidence corroborating her claim or rehabilitating her

 7   testimony.       See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

 8   Cir. 2007).      For example, the agency reasonably required

 9   supporting testimony from Chen’s husband, as he had an

10   interest in the outcome of her proceedings.      Her husband’s

11   immigration status did not prevent him from testifying.        See

12   Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011).

13   Additionally, Chen’s abortion certificate did not

14   rehabilitate her claim that family planning officials used

15   force during her alleged procedure, see Xiao Xing Ni v.

16   Gonzales, 494 F.3d 260, 263 (2d Cir. 2007).       The United

17   States Department of State has reported that “the only

18   document that might resemble [an abortion] certificate . . .

19   is a document issued by hospitals upon a patient’s request

20   after a voluntary abortion.” Bureau of Democracy, Human

21   Rights and Labor, U.S. Dep’t of State, China: Profile of

22



     07162014-B1-1                     4
 1   Asylum Claims and Country Conditions 24 (Apr. 14, 1998),

 2   quoted in Xiao Xing Ni, 494 F.3d at 263.

 3           Given the inconsistency and corroboration findings, the

 4   agency’s adverse credibility determination is supported by

 5   substantial evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii);

 6   see also Xiu Xia Lin, 534 F.3d at 167.

 7   II. Well-Founded Fear of Persecution

 8           For largely the same reasons as this Court set forth in

 9   Jian Hui Shao, 546 F.3d 138, we find no error in the

10   agency’s determination that Chen failed to demonstrate her

11   eligibility for relief based on her fear of future

12   persecution for her alleged violation of China’s population

13   control program.     See id. at 158-72.   The agency did not err

14   in giving diminished weight to a statement from Chen’s

15   father stating that family planning officials wanted to

16   sterilize and fine her because it was written by an

17   interested witness who was not subject to cross-examination.

18   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

19   341-42 (2d Cir. 2006); see also In re H-L-H- & Z-Y-Z-, 25 I.

20   & N. Dec. 209, 215 (BIA 2010) (giving diminished weight to

21   letters by interested witnesses not subject to cross-




     07162014-B1-1                   5
 1   examination), abrogated on other grounds by Hui Lin Huang v.

 2   Holder, 677 F.3d 130 (2d Cir. 2012).

 3          For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

 7   this petition is DISMISSED as moot.         Any pending request for

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

11                                     FOR THE COURT:
12                                     Catherine O’Hagan Wolfe, Clerk
13
14




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