         13-38
         Chen v. Holder
                                                                                       BIA
                                                                                 Zagzoug, IJ
                                                                               A200 699 992
                           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 3rd day of June, two thousand fourteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                GUIDO CALABRESI,
 9                REENA RAGGI,
10                     Circuit Judges.
11       _____________________________________
12
13       SHUN YING CHEN,
14                Petitioner,
15
16                        v.                                    13-38
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Briana F. Isiminger, Law Offices of
24                                     Yu & Associates, PLLC, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
28                                     General; Linda S. Wernery, Assistant
29                                     Director; Theodore C. Hirt, Senior
30                                     Litigation Counsel, Office of
31                                     Immigration Litigation, United
32                                     States Department of Justice,
33                                     Washington, D.C.
 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 Shun Ying Chen, a native and citizen of

 6   China, seeks review of a December 13, 2012, decision of the

 7   BIA affirming an August 1, 2011, decision of Immigration

 8   Judge (“IJ”) Randa Zagzoug, denying Chen’s application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Shun Ying Chen,

11   No. A200 699 992 (B.I.A. Dec. 13, 2012), aff’g No. A200 699

12   992 (Immig. Ct. N.Y. City Aug. 1, 2011).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA.     See Wala v.

17   Mukasey, 511 F.3d 102, 105 (2d Cir. 2007).    The applicable

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

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

20   (2d Cir. 2008).

21       For applications like this one, governed by the REAL ID

22   Act of 2005, the agency may base a credibility finding on an

23   asylum applicant’s demeanor, the plausibility of her


                                  2
 1   account, and inconsistencies in her statements, without

 2   regard to whether they go “to the heart of the applicant’s

 3   claim.”     8 U.S.C. § 1158(b)(1)(B)(iii); Matter of J–Y–C–, 24

 4   I. & N. Dec. 260, 265 (B.I.A. 2007).    Analyzed under these

 5   standards, the agency’s adverse credibility determination is

 6   supported by substantial evidence.

 7       Contrary to Chen’s argument, a negative demeanor

 8   finding can properly be based on vague and unresponsive

 9   testimony.     See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d

10   Cir. 2006) (explaining that evasiveness is “one of the many

11   outward signs a fact-finder may consider in evaluating

12   demeanor and in making an assessment of credibility”);

13   Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005)

14   (noting that the IJ’s assessment of a petitioner’s demeanor

15   included his unresponsive testimony).    Moreover, the Court

16   gives “particular deference” to an IJ’s demeanor finding,

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

18   Cir. 2005) (internal quotation marks omitted), especially

19   when, as here, the IJ’s assessment is supported by “specific

20   examples of inconsistent testimony.”     Li Hua Lin v. U.S.

21   Dep't of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

22   The record supports the IJ’s negative demeanor finding based

23   on Chen’s varying testimony as to when her wedding banquet

24   was held.

                                     3
 1       Although Chen now argues that any inconsistency was due

 2   to her “low IQ,” and inability to calculate dates, she did

 3   not raise these arguments before the agency, and we decline

 4   to consider them.   See Lin Zhong v. U.S. Dep’t of Justice,

 5   480 F.3d 104, 107 n.1 (2d Cir. 2007).   Further, the agency

 6   was not required to credit Chen’s explanation that her

 7   testimony was mistaken due to her lack of education.     See

 8   Majidi, 430 F.3d at 80-81 (holding that the agency need not

 9   credit an applicant’s explanations unless those explanations

10   would compel a reasonable fact-finder to do so).

11       The agency also reasonably relied on Chen’s

12   inconsistent testimony as to when she received a village

13   committee certificate indicating that she had an

14   intrauterine device (“IUD”) and when the IUD was removed.

15   Chen has not reconciled these inconsistencies or provided a

16   compelling explanation for them.   See id.

17       Chen has not contested the BIA’s finding that she

18   failed to corroborate her claim, or the IJ’s finding that

19   she failed to explain why the receipt for the fine she

20   allegedly paid for violating family planning policies

21   indicated that she had paid a “social alimony fee,” and,

22   thus, these findings provide further support for the adverse

23   credibility determination.   See Shunfu Li v. Mukasey, 529

                                   4
 1   F.3d 141, 146-47 (2d Cir. 2008).    Accordingly, the agency’s

 2   adverse credibility determination is supported by

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

 4   Xiu Xia Lin, 534 F.3d at 167.

 5       Having reasonably found that Chen failed to establish

 6   eligibility for asylum on credibility grounds, the agency

 7   did not err in denying withholding of removal and relief

 8   under the CAT, as these claims share the same factual

 9   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

10   Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

11   520, 523 (2d Cir. 2005).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

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




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