     16-1569
     Chen v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 469 055

                             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   11th day of April, two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAO HUI CHEN,
14            Petitioner,
15
16                      v.                                           16-1569
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gerald Karikari, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Jonathan A.
27                                       Robbins, Senior Litigation Counsel;
28                                       Joanna L. Watson, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       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 is

4    DENIED.

5        Petitioner Xiao Hui Chen, a native and citizen of the

6    People’s Republic of China, seeks review of an April 20, 2016,

7    decision of the BIA, affirming a November 14, 2014, decision

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

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).      In re Xiao Hui Chen, No. A205 469 055

11   (B.I.A. Apr. 20, 2016), aff’g No. A205 469 055 (Immig. Ct. N.Y.

12   City Nov. 14, 2014).       We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed both

15   the IJ’s and the BIA’s decisions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).     We     review     the   agency’s   adverse     credibility

18   determination     for   substantial    evidence.        See   8 U.S.C.

19   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

20   (2d Cir. 2008).

21       For asylum applications like Chen’s, governed by the REAL

22   ID Act, the agency may, “[c]onsidering the totality of the

23   circumstances,” base a credibility finding on an applicant’s
                                        2
1    “demeanor, candor, or responsiveness,” and on inconsistencies

2    in   an   applicant’s    statements            and    evidence.         8    U.S.C.

3    § 1158(b)(1)(B)(iii);        Xiu    Xia        Lin,   534   F.3d    at      163-64.

4    Contrary to Chen’s position in his brief, under the REAL ID Act,

5    inconsistencies        may    support           an    adverse       credibility

6    determination “without regard to whether” they “go[] to the

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

8    § 1158(b)(1)((B)(iii).        “We defer . . . to an IJ’s credibility

9    determination unless, from the totality of the circumstances,

10   it is plain that no reasonable fact-finder could make such an

11   adverse credibility ruling.”                 Xiu Xia Lin, 534 F.3d at 167.

12   Substantial     evidence     supports           the    adverse      credibility

13   determination.

14        The crux of Chen’s claim is that he was persecuted and fears

15   persecution in China because he attended an underground church.

16   The agency reasonably relied on inconsistencies between Chen’s

17   testimony,     application,        and        evidence.       See       8    U.S.C.

18   § 1158(b)(1)(B)(iii).        The inconsistencies are reflected in

19   the record and provide substantial support for the adverse

20   credibility determination as they concern Chen’s practice of

21   Christianity in China and the United States.                 See Xian Tuan Ye

22   v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)

23   (concluding that “a material inconsistency” relating to “the
                                              3
1    very     persecution    from    which          [the    applicant]    sought

2    asylum, . . . afforded substantial evidence to support the

3    adverse credibility finding.” (internal quotation marks and

4    citation     omitted)).        For       example,      Chen’s    testimony,

5    application, and evidence were inconsistent regarding when Chen

6    began attending an underground church and whether he ever

7    attended a government church.            Chen testified, moreover, that

8    he required medical attention following his detention, but

9    neither his application nor his mother’s letter included that

10   important fact.     See Xiu Xia Lin, 534 F.3d at 166 n.3 (“An

11   inconsistency     and     an    omission          are . . . functionally

12   equivalent.”).    Given that these omissions or inconsistencies

13   go directly to the events leading up to and immediately

14   following the sole incident of alleged persecution, the agency

15   was not required to put Chen on notice of their relevance or

16   offer him more of an opportunity to explain.                See Ming Shi Xue

17   v. BIA, 439 F.3d 111, 122 n.13, 125 (2d Cir. 2006) (concluding

18   that where the “inconsistency is ‘dramatic’ or obvious on its

19   face . . . the petitioner can be assumed to be aware—without

20   being told—of the need to explain it”).

21          The adverse credibility determination is bolstered by the

22   agency’s    demeanor    finding.          We   defer   to    that   finding,

23   particularly given the evidence of Chen’s pauses and difficulty
                                          4
1    answering    questions    and     providing   explanations   for

2    inconsistencies.    See Majidi v. Gonzales, 430 F.3d 77, 81 n.1

3    (2d Cir. 2005).

4         Nor do we discern error in the agency’s decision to give

5    limited weight to Chen’s corroborating evidence.     See Y.C. v.

6    Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the

7    agency’s determination of the weight afforded to an alien’s

8    documentary evidence.”).        Chen’s letters from China were

9    authored by individuals not subject to cross examination, and

10   a church letter from the United States was inconsistent with

11   Chen’s testimony.    Id. (upholding agency’s decision to give

12   little weight to letter from family member in China).

13        Given the multiple inconsistencies, the demeanor finding,

14   and the lack of reliable corroboration, the totality of the

15   circumstances supports the adverse credibility determination.

16   Xiu Xia Lin, 534 F.3d at 167.   That determination is dispositive

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

18   three forms of relief are based on the same factual predicate.

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

20        For the foregoing reasons, the petition for review is

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

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

23
                                      5
1   and any pending motion for a stay of removal in this petition

2   is DISMISSED as moot.

3                               FOR THE COURT:
4                               Catherine O’Hagan Wolfe, Clerk




                                  6
