     17-4108
     Chen v. Barr
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A206 072 210
                         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 4th day of November, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RAYMOND J. LOHIER, JR.,
10            RICHARD J. SULLIVAN,
11                 Circuit Judges.
12   _____________________________________
13
14   YI CHEN,
15                  Petitioner,
16
17                  v.                                           17-4108
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Adedayo O. Idowu, New York, NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
27                                    Attorney General; Paul Fiorino,
28                                    Senior Litigation Counsel, Judith
29                                    R. O’Sullivan, Trial Attorney,
30                                    Office of Immigration Litigation,
31                                    United States Department of
32                                    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 Yi Chen, a native and citizen of the People’s

6    Republic of China, seeks review of a November 27, 2017,

7    decision of the BIA affirming a March 6, 2017, decision of an

8    Immigration        Judge    (“IJ”)    denying    asylum,   withholding      of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).      In re Yi Chen, No. A206 072 210 (B.I.A. Nov. 27,

11   2017), aff’g No. A206 072 210 (Immig. Ct. N.Y. City Mar. 6,

12   2017).        We    assume    the     parties’    familiarity       with    the

13   underlying facts and procedural history in this case.

14          Under the circumstances of this case, we have reviewed

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

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

17   524, 528 (2d Cir. 2006).             The applicable standards of review

18   are well established.         See 8 U.S.C. § 1252(b)(4)(B); Hong Fei

19   Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

20          “Considering the totality of the circumstances, and all

21   relevant factors, a trier of fact may base a credibility

22   determination on the demeanor, candor, or responsiveness of

23   the applicant . . . , the consistency between the applicant’s
                                             2
1    . . . written and oral statements . . . , the internal

2    consistency of each such statement, the consistency of such

3    statements with other evidence of record . . . without regard

4    to whether an inconsistency, inaccuracy, or falsehood goes to

5    the heart of the applicant’s claim, or any other relevant

6    factor.”    8 U.S.C. § 1158(b)(1)(B)(iii).       “We defer . . . to

7    an IJ’s credibility determination unless, from the totality

8    of the circumstances, it is plain that no reasonable fact-

9    finder could make such an adverse credibility ruling.”          Xiu

10   Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord

11   Hong Fei Gao, 891 F.3d at 76.         Substantial evidence supports

12   the agency’s determination that Chen was not credible as to

13   his claim that police officers detained and beat him on

14   account of his practice of Christianity or that he feared

15   future persecution because he was a practicing Christian in

16   the United States.

17       The IJ found that Chen’s demeanor detracted from his

18   credibility because he paused numerous times when answering

19   even basic questions and sometimes did not answer at all.

20   The IJ may base a credibility determination on the “demeanor,

21   candor,    or   responsiveness”   of   the   applicant.   8   U.S.C.

22   § 1158(b)(1)(B)(iii).     The record supports the IJ’s finding.

23   Chen failed to respond or had lengthy pauses in answering
                                       3
1    basic questions, such as whether the police stated why they

2    were raiding his unregistered church in China and how long he

3    had attended his church in the United States.                       We defer to

4    the IJ’s findings based on his observation of Chen’s demeanor,

5    see Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d

6    Cir.    2005),    particularly          where,    as    discussed    below,     the

7    findings are supported by inconsistencies, see Li Hua Lin v.

8    U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We

9    can be still more confident in our review of observations

10   about    an     applicant’s     demeanor      where,      as   here,     they   are

11   supported by specific examples of inconsistent testimony.”).

12          The    agency    reasonably       relied    on    Chen’s     inconsistent

13   statements about being required to report to the police in

14   China and his internally inconsistent testimony about his

15   church       attendance    in     the    United    States.        See    8 U.S.C.

16   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 165-

17   67.    Chen’s application and his wife’s letter stated, without

18   more, that he was under “police surveillance.”                          Chen then

19   testified that he was required to report to the police once

20   or twice every week.              Although Chen argues that the two

21   descriptions refer to the same facts, the IJ reasonably

22   concluded that the reporting requirement was a significant

23   fact     that    Chen     would    be     expected       to    include    in    the
                                               4
1    application.     See Hong Fei Gao, 891 F.3d at 78–79 (weight

2    given to an omission depends, in part, on whether “facts are

3    ones that a credible petitioner would reasonably have been

4    expected to disclose under the relevant circumstances”); see

5    also Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016)

6    (holding that while “applicants are not required to list every

7    incident” in an application, the agency does not err in

8    relying on differing descriptions).

9         Chen was also inconsistent about his church attendance

10   in the United States, first testifying that he regularly

11   attends church on Sundays, then stating it was on Mondays,

12   and offering no explanation for the inconsistency.             Although

13   Chen argues that this inconsistency is immaterial, an IJ may

14   rely on even tangential inconsistencies.           See Xiu Xia Lin,

15   534 F.3d at 167 (“[A]n IJ may rely on any inconsistency . . .

16   as long as the totality of the circumstances establishes that

17   an   asylum    applicant     is    not   credible.”     (emphasis    in

18   original)).

19        Having    questioned     Chen’s     credibility,    the     agency

20   reasonably     relied   on   his    failure   to   rehabilitate     his

21   testimony     with   reliable      corroborating   evidence.        “An

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

23   bear on credibility, because the absence of corroboration in
                                         5
1    general makes an applicant unable to rehabilitate testimony

2    that has already been called into question.”                 Biao Yang v.

3    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).            As the IJ found,

4    Chen did not corroborate his attendance of church in China or

5    in the United States.       His unsupported assertions that no one

6    would testify or provide letters from either of his churches

7    is    insufficient     to   compel    a   reasonable    fact-finder    to

8    conclude “that such corroborating evidence is unavailable.”

9    8 U.S.C. § 1252(b)(4).         And though he argues that the IJ did

10   not consider his explanations, the IJ did refer to them, but

11   did not find them reasonable.             The IJ was not compelled to

12   credit the explanations.         See Majidi v. Gonzales, 430 F.3d

13   77, 80 (2d Cir. 2005) (“A petitioner must do more than offer

14   a plausible explanation for his inconsistent statements to

15   secure relief; he must demonstrate that a reasonable fact-

16   finder would be compelled to credit his testimony.” (internal

17   quotations omitted and emphasis in original)).

18         Accordingly,     given    the   IJ’s   consideration     of   Chen’s

19   demeanor, the discrepancies within Chen’s statements and with

20   the letter from his wife, and the lack of corroboration of

21   his    practice   of    Christianity,        the   adverse    credibility

22   determination is supported by substantial evidence.                   See

23   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
                                           6
1   That determination is dispositive of asylum, withholding of

2   removal, and CAT relief because all three claims are based on

3   the same factual predicate.    See Paul v. Gonzales, 444 F.3d

4   148, 156-57 (2d Cir. 2006).

5       For the foregoing reasons, the petition for review is

6   DENIED.   All pending motions are DENIED and stays VACATED.

7                                 FOR THE COURT:
8                                 Catherine O’Hagan Wolfe,
9                                 Clerk of Court




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