     17-920
     Chen v. Whitaker
                                                                                  BIA
                                                                            Zagzoug, IJ
                                                                          A205 027 384
                             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 16th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            GERARD E. LYNCH,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MEIZHEN CHEN,
14            Petitioner,
15
16                      v.                                       17-920
17                                                               NAC
18   MATTHEW G. WHITAKER,
19   ACTING UNITED STATES ATTORNEY
20   GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Zhong Yue Zhang, Esq., Zhang &
25                                      Associates, LLC, Flushing, NY.
26
27   FOR RESPONDENT:                    Jonathan K. Ross, Trial Attorney,
28                                      Office of Immigration Litigation;
29                                      Margaret Kuehne Taylor, Senior
30                                      Litigation Counsel, Office of
31                                      Immigration Litigation; Chad A.
1                                 Readler, Principal Deputy
2                                 Assistant Attorney General; United
3                                 States Department of Justice,
4                                 Washington, DC.
5

6        UPON DUE CONSIDERATION of this petition for review of a

7    Board of Immigration Appeals (“BIA”) decision, it is hereby

8    ORDERED, ADJUDGED, AND DECREED that the petition for review

9    is DENIED.

10       Petitioner Meizhen Chen, a native and citizen of the

11   People’s Republic of China, seeks review of a March 23, 2017

12   decision of the BIA affirming a December 14, 2015 decision of

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

14   asylum,   withholding   of   removal,   and    relief   under   the

15   Convention Against Torture (“CAT”).           Her application was

16   based on her membership in and activities related to the China

17   Democracy Party (“CDP”) while in the United States.         In re

18   Meizhen Chen, No. A 205 027 384 (B.I.A. Mar. 23, 2017), aff’g

19   No. A 205 027 384 (Immig. Ct. N.Y. City Dec. 14, 2015).          We

20   assume the parties’ familiarity with the underlying facts and

21   procedural history in this case.

22       We have reviewed the decisions of both the BIA and the

23   IJ “for the sake of completeness.”       Wangchuck v. Dep’t of
                                     2
1    Homeland   Sec.,   448   F.3d   524,    528    (2d   Cir.   2006).       The

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

3    § 1252(b)(4); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d

4    Cir. 2008); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

5    2009).

6        “Considering the totality of the circumstances, . . . a

7    trier of fact may base a credibility determination on the

8    demeanor, candor, or responsiveness of the applicant . . . ,

9    the consistency between the applicant’s or witness’s written

10   and oral statements . . . , the internal consistency of each

11   such statement, the consistency of such statements with other

12   evidence of record . . . , and any inaccuracies or falsehoods

13   in such statements, . . . or any other relevant factor.”                  8

14   U.S.C.   § 1158(b)(1)(B)(iii);         see    also   Hong    Fei   Gao    v.

15   Sessions, 891 F.3d 67, 76-77 (2d Cir. 2018); Xiu Xia Lin, 534

16   F.3d at 163-64.      “We defer . . . to an IJ’s credibility

17   determination unless . . . it is plain that no reasonable

18   fact-finder could make such an adverse credibility ruling.”

19   Xiu Xia Lin, 534 F.3d at 167.                 Here, we conclude that

20   substantial evidence supports the agency’s determination that

21   Chen was not credible.
                                       3
1           The record supports the agency’s characterization of

2    Chen’s testimony as often vague and lacking in sufficient

3    detail to be credible.             An “IJ’s ability to observe the

4    witness’s demeanor places her in the best position to evaluate

5    whether apparent problems in the witness’s testimony suggest

6    a lack of credibility or, rather, can be attributed to an

7    innocent     cause   such     as     difficulty    understanding        the

8    question.”    Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,

9    113 (2d Cir. 2005).

10          First, the record shows that, as the IJ observed, Chen

11   repeated generic phrases like “the concept of the CDP” and

12   “the    autocracy”   without       elaborating    on    their    meaning,

13   suggesting that her testimony was memorized.                  Second, the

14   record supports the IJ’s determination that Chen’s undetailed

15   testimony regarding how she came to join the CDP was not

16   credible.     Although      Chen    testified    that   she   joined   the

17   organization based on a leaflet she was handed in Flushing,

18   Queens, she was initially unable to describe the contents of

19   the leaflet or state the general mission of the organization.

20   She offered an account only late in the hearing, when she

21   gave what the IJ characterized as a memorized answer.                  And,
                                          4
1    while she averred that she was traveling to a cousin’s

2    business when she was handed the leaflet, she could provide

3    neither the name of the cousin nor the business, and she did

4    not know the business’s address.               A.R. 81-82.     The IJ was

5    not required to accept Chen’s explanation for not knowing her

6    cousin’s name (that she always calls her cousin “Sister” and

7    “because there’s a huge age gap” between them).                See Majidi

8    v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner

9    must do more than offer a plausible explanation for his

10   inconsistent statements to secure relief; he must demonstrate

11   that a reasonable fact-finder would be compelled to credit

12   his    testimony.”      (internal   quotation     marks    and   emphasis

13   omitted)).     The IJ reasonably concluded in light of these

14   failings and with the support of its observations that Chen’s

15   testimony seemed “mechanical and memorized.”                 A.R. 70; see

16   Xusheng Shi v. BIA, 374 F.3d 64, 66 (2d Cir. 2004) (upholding

17   IJ’s    finding   that    generalized    or    non-responsive     answers

18   reflected memorized script).

19          The agency also reasonably found that Chen failed to

20   rehabilitate      her   credibility     with    reliable   corroborating

21   evidence.    The only additional evidence offered to support
                                         5
1    Chen’s claims of her prodemocracy activities in the United

2    States were letters from her mother and the testimony of a

3    witness.    The    IJ   did     not   err   in    according    the   letters

4    diminished weight, because Chen’s mother was an interested

5    witness not subject to cross-examination, and her letters

6    recounting police visits to her home were not subject to

7    verification   apart     from    Chen’s     own    testimony.        Y.C.   v.

8    Holder, 741 F.3d 324, 334 (2d Cir. 2013) (affirming agency’s

9    determination that letter from relative in China was entitled

10   to limited weight because it was unsworn and submitted by an

11   interested witness);      see Xiao Ji Chen v. U.S. Dept. of

12   Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that weight

13   to be accorded evidence is “largely within the discretion of

14   the IJ” (internal quotation marks omitted)).                 The IJ did not

15   err, further, in determining that the witness’s testimony was

16   of only limited value because the witness could not recall

17   specific information about Chen’s alleged involvement with

18   the CDP.

19         These problems with Chen’s testimony and the evidence

20   offered as corroboration, call into question the extent of

21   and   motivation   for    her     alleged        activism.      Substantial
                                           6
1    evidence therefore supports the IJ’s adverse credibility

2    determination as to Chen.    See 8 U.S.C. § 1158(b)(1)(B)(iii);

3    Xiu Xia Lin, 534 F.3d at 165-66.

4        Moreover, as the agency found, even crediting Chen’s

5    description of her activism in the United States, her asylum

6    claim fails because she did not meet her burden of showing an

7    objectively   reasonable   fear   of    future   persecution.    See

8    Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)

9    (requiring the fear be subjectively credible and “objectively

10   reasonable”).    Because Chen’s CDP activities occurred in the

11   United States, she had to show that Chinese authorities were

12   either already aware, or likely to become aware, of those

13   activities.     Hongsheng Leng v. Mukasey, 528 F.3d 135, 138,

14   143 (2d Cir. 2008).    Chen did not meet that burden.

15       As noted above, the agency was not required to credit

16   the letters from Chen’s mother.        Y.C., 741 F.3d at 334.   That

17   Chen posted articles on the CDP’s website and that her

18   photograph was on the site is not enough to demonstrate the

19   requisite awareness.    Id. at 333-34, 336-37.      While the State

20   Department reports included in the administrative record

21   reflected persecution of democracy activists who were active
                                       7
1    in   China,    they   contained    no    examples     of   the   Chinese

2    government’s     persecution      of    individuals    who    had   been

3    activists only in the United States before returning to China.

4    Because   Chen    failed    to     demonstrate      that     objectively

5    reasonable fear of future persecution that is needed to be

6    eligible for asylum, she also failed to meet the higher

7    burdens of proof applicable to withholding of removal and CAT

8    relief.   Id. at 335.

9         For the foregoing reasons, the petition for review is

10   DENIED.

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




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