     16-2733
     Chen v. Sessions
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A206 281 800

                             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 3rd day of April, two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            JOHN M. WALKER, JR.,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   QINGLAN CHEN,
14            Petitioner,
15
16                      v.                                       16-2733
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                      Yee Ling Poon (and Deborah
24                                        Niedermeyer, on the brief), New
25                                        York, NY.
26
27   FOR RESPONDENT:                      Chad A. Readler, Acting
28                                        Assistant Attorney General; M.
29                                        Jocelyn Lopez Wright, Senior
30                                        Litigation Counsel; Sara J.
31                                        Bayram, Trial Attorney, Office
32                                        of Immigration Litigation,
33                                        United States Department of
34                                        Justice, Washington, DC.
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 petition for review

4    is DENIED.

5        Petitioner Qinglan Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a July 26, 2016,

7    decision of the BIA affirming a March 12, 2015, decision of

8    an Immigration Judge (“IJ”) denying Chen’s application for

9    asylum,   withholding   of   removal,   and   relief   under   the

10   Convention Against Torture (“CAT”).     In re Qinglan Chen, No.

11   A206 281 800 (B.I.A. July 26, 2016), aff’g No. A206 281 800

12   (Immig. Ct. N.Y. City Mar. 12, 2015).    We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s decisions.        See Yun-Zui Guan v.

17   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).        The applicable

18   standards of review are well established.           See 8 U.S.C.

19   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

20   66 (2d Cir. 2008).

21       The governing REAL ID Act credibility standard provides

22   that the agency must “[c]onsider[] the totality of the

23   circumstances,” and may base a credibility finding on an

                                     2
1    applicant’s “demeanor, candor, or responsiveness,” the

2    plausibility of her account, and inconsistencies in his or

3    her witness’s statements, “without regard to whether” they

4    go “to the heart of the applicant’s claim.”    8 U.S.C.

5    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 n.2.

6    “We defer . . . to an IJ’s credibility determination unless

7    . . . it is plain that no reasonable fact-finder could make

8    such an adverse credibility ruling.”     Xiu Xia Lin, 534 F.3d

9    at 167.   For the reasons that follow, we conclude that

10   substantial evidence supports the agency’s finding that

11   Chen was not credible.

12       First, the agency reasonably relied on Chen’s

13   inconsistent testimony about how she and her witness, Qui,

14   prepared written statements in support of each other’s

15   asylum applications.     See 8 U.S.C. § 1158(b)(1)(B)(iii).

16   Chen initially testified that she and Qui wrote the

17   statements together; however, Chen later testified that

18   they did not.   Chen argues that this was an improper basis

19   because her statement in support of Qui’s application was

20   not in the record.   However, the agency may rely on “any

21   inconsistency” and here relied on Chen’s inconsistent

22   testimony about the statements, not on the statements

23   themselves.   See Xiu Xia Lin, 534 F.3d at 167 (“[A]n IJ may

                                     3
1    rely on any inconsistency . . . in making an adverse

2    credibility determination as long as the ‘totality of the

3    circumstances’ establishes that an asylum applicant is not

4    credible.”).   The IJ also observed that Chen was hesitant

5    and nonresponsive when asked how the statements were

6    prepared.   See Li Zu Guan v. INS, 453 F.3d 129, 140 (2d

7    Cir. 2006); see also Li Hua Lin v. U.S. Dep’t of Justice,

8    453 F.3d 99, 109 (2d Cir. 2006) (“We can be still more

9    confident in our review of observations about an

10   applicant’s demeanor where, as here, they are supported by

11   specific examples of inconsistent testimony.”).

12       Second, the agency reasonably found Chen and Qui’s

13   shared practice of Falun Gong implausible based on Qui’s

14   testimony and credit report.    See 8 U.S.C.

15   § 1158(b)(1)(B)(iii).   Although Chen and Qui testified that

16   they had practiced Falun Gong together multiple times per

17   month in New York since 2014, Qui’s credit report reflected

18   no ties to New York and placed him in North Carolina during

19   the relevant period.    Accordingly, contrary to Chen’s

20   position, the implausibility finding is “tethered to the

21   evidentiary record.”    Siewe v. Gonzales, 480 F.3d 160, 168-

22   69 (2d Cir. 2007) (“[S]peculation that inheres in inference

23   is not ‘bald’ if the inference is made available to the

                                    4
1    factfinder by record facts, or even a single fact, viewed

2    in the light of common sense and ordinary experience.    So

3    long as an inferential leap is tethered to the evidentiary

4    record, we will accord deference to the finding.”).

5        Last, the agency reasonably found that Chen’s

6    corroborating evidence was insufficient to rehabilitate her

7    credibility.   See Biao Yang v. Gonzales, 496 F.3d 268, 273

8    (2d Cir. 2007) (“An applicant’s failure to corroborate his

9    or her testimony may bear on credibility, because the

10   absence of corroboration in general makes an applicant

11   unable to rehabilitate testimony that has already been

12   called into question.”).   Chen argues that the agency was

13   required to give her an additional opportunity to obtain a

14   statement or testimony from her sister.   The argument

15   misunderstands the agency’s decision.   Although the agency

16   must identify missing evidence and solicit an explanation

17   for its absence before denying relief on corroboration

18   grounds, the same process is not required where an

19   applicant’s testimony has already been called into

20   question.   Compare Biao Yang, 496 F.3d at 273, with Chuilu

21   Liu v. Holder, 575 F.3d 193, 197, 198 n.5 (2d Cir. 2009).

22       Given the foregoing inconsistency, implausibility,

23   demeanor, and corroboration findings, we conclude that the

                                   5
1    adverse credibility determination is supported by the

2    “totality of the circumstances.”    Xiu Xia Lin, 534 F.3d at

3    167.    The credibility determination is dispositive of

4    asylum, withholding of removal, and CAT relief because all

5    three claims are based on the same factual predicate.     See

6    Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).     We

7    do not reach the agency’s alternative determination that

8    Chen’s asylum application was untimely.    See INS v.

9    Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule

10   courts and agencies are not required to make findings on

11   issues the decision of which is unnecessary to the results

12   they reach.”).

13          For the foregoing reasons, the petition for review is

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

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

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

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

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

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

20   34.1(b).

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




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