     16-679
     Chen v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 226 227

                             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   15th day of June, two thousand seventeen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            JOSÉ A. CABRANES,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   WEN LIN CHEN,
14            Petitioner,
15
16                      v.                                           16-679
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gerald Karikari, Karikari &
24                                       Associates, P.C., New York, NY.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; John S.
28                                       Hogan, Assistant Director; Mona
29                                       Maria Yousif, Trial Attorney, Office
30                                       of Immigration Litigation, United
31                                       States Department of Justice,
32                                       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    DISMISSED in part and DENIED in part.

5           Petitioner Wen Lin Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a February 12, 2016,

7    decision of the BIA, both (1) affirming a December 23, 2013,

8    decision of an Immigration Judge (“IJ”), which denied asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”) and concluded that Chen filed a frivolous

11   application, and (2) denying his motion to remand.         In re Wen

12   Lin Chen, No. A205 226 227 (B.I.A. Feb. 12, 2016), aff’g No.

13   A205 226 227 (Immig. Ct. N.Y. City Dec. 23, 2013).        We assume

14   the    parties’   familiarity   with   the   underlying   facts   and

15   procedural history in this case.

16          We have reviewed the IJ’s decision as supplemented by the

17   BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18   The applicable standards of review are well established.          See

19   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

20   165-66 (2d Cir. 2008) (adverse credibility determinations

21   reviewed under substantial evidence standard); Li Yong Cao v.

22   U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005) (denials

23   of motions to remand reviewed for abuse of discretion).

                                       2
1      I.     One-Year Bar

2           An asylum application generally must be filed within one

3    year of an applicant’s arrival in the United States.             8 U.S.C.

4    § 1158(a)(2)(B), (D).      Our jurisdiction to review the agency’s

5    pretermission of asylum on timeliness grounds is limited to

6    “constitutional     claims   or   questions    of    law.”      8   U.S.C.

7    §§ 1158(a)(3), 1252(a)(2)(D).

8           Chen alleges that he entered the United States on March 21,

9    2011.    However, as discussed in further detail below, Chen’s

10   testimony was internally inconsistent with respect to this

11   date, and the Government proffered evidence that Chen was in

12   the United States as early as 2007.          Chen’s only challenge to

13   the    one-year   bar   determination   is    that   the     Government’s

14   evidence should not have been accorded any weight.                    This

15   challenge to the weight of the evidence “merely quarrels over

16   the correctness of the factual findings or justification for

17   the discretionary choices,” and we lack jurisdiction to review

18   it.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

19   329 (2d Cir. 2006).

20     II. Denial of Relief

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

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

23   circumstances,” base a credibility finding on inconsistencies

                                        3
1    in his statements and evidence, “without regard to whether”

2    those inconsistencies go “to the heart of the applicant’s

3    claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

4    at 163-64.   “We defer . . . to an IJ’s credibility determination

5    unless, from the totality of the circumstances, it is plain that

6    no reasonable fact-finder could make such an adverse

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

8    Substantial evidence supports the adverse credibility

9    determination.

10       The agency reasonably relied on inconsistencies between

11   Chen’s testimony and the Government’s evidence, as well as

12   Chen’s internally inconsistent testimony, concerning his date

13   of entry to the United States.      See 8 U.S.C.

14   § 1158(b)(1)(B)(iii).    Chen’s application alleged that he

15   entered the United States on March 21, 2011, through the Texas

16   border; he initially testified to that date and emphasized that

17   he had never previously entered the United States.       This

18   conflicted with the Government’s evidence—two applications for

19   immigration benefits filed in 2007, bearing Chen’s full name,

20   birth date, country and province of birth, and marital

21   status—placing him in the United States as early as 2007.        When

22   confronted with this evidence, Chen did not proffer an

23   explanation or counter with other evidence.        Instead, he

                                     4
1    maintained that his first and only entry occurred on March 21,

2    2011, and denied filing the 2007 applications.       The agency

3    reasonably concluded that this discrepancy undermined Chen’s

4    claim of being detained and beaten in China in 2010.     Cf. Xian

5    Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.

6    2006) (“[A] material inconsistency in an aspect of [an

7    applicant’s] story that served as an example of the very

8    persecution from which he sought asylum . . . afforded

9    substantial evidence to support the adverse credibility

10   finding.”).

11       Chen argues that it was error for the agency to find him

12   not credible on that basis because the Government’s evidence

13   was unreliable: the applications did not bear his signature and

14   were prepared by an individual who had defrauded applicants and

15   filed fraudulent applications for immigration relief.        The

16   agency   acknowledged   these   deficiencies   but   nevertheless

17   concluded that the two applications supported the adverse

18   credibility determination.      “Decisions as to . . . which of

19   competing inferences to draw are entirely within the province

20   of the trier of fact.”    Siewe v. Gonzales, 480 F.3d 160, 167

21   (2d Cir. 2007) (internal quotation marks omitted); see also Xiao

22   Ji Chen, 471 F.3d at 342 (observing that this Court generally

23   defers to the weight the agency gives to evidence).      Because

                                      5
 1   the agency’s finding is “tethered to the evidentiary record,”

 2   we accord it deference.     Siewe, 480 F.3d at 168-69.

 3       Further,     Chen’s    internally        inconsistent     testimony

 4   supports the agency’s reliance on the 2007 applications and the

 5   resulting    adverse   credibility      determination.        8   U.S.C.

 6   § 1158(b)(1)(B)(iii).      Chen contradicted his own testimony

 7   that he entered the United States on March 21, 2011, by stating

 8   that he picked up a document while in China on March 24, 2011.

 9   When asked to explain this discrepancy, Chen responded, “This

10   has been long time ago [sic].      I don’t know,” then changed his

11   testimony to say that he picked up the document in February 2011.

12   His explanation did not resolve the inconsistency and the agency

13   reasonably found him not credible on this basis.             See Majidi

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

15   do more than offer a plausible explanation for his inconsistent

16   statements to secure relief; he must demonstrate that a

17   reasonable   fact-finder   would       be   compelled   to   credit   his

18   testimony.” (internal quotation marks omitted)).

19       Chen’s testimony that he entered the United States in March

20   2011 for the first time is also undercut by his response to a

21   question about being fingerprinted.         Chen testified that he was

22   fingerprinted once, in February 2012, when applying for asylum.

23   When the Government attorney mentioned evidence that Chen was

                                        6
1    living in Washington state, without specifying a year, Chen,

2    without prompting, asked, “You’re talking about in 2010?”          Chen

3    then repeated that he was still in China in 2010.             Given the

4    other inconsistencies regarding Chen’s entry, the IJ reasonably

5    concluded that this spontaneous reference to 2010 contributed

6    to the totality of the circumstances demonstrating that he

7    lacked credibility.

 8         Having questioned Chen’s credibility, the agency did not

 9   err   in   concluding    that    his    corroborating   evidence      was

10   insufficient to rehabilitate his testimony.             Biao Yang v.

11   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

12   failure    to    corroborate    his . . . testimony     may    bear   on

13   credibility, because the absence of corroboration in general

14   makes an applicant unable to rehabilitate testimony that has

15   already been called into question.”).           The agency reasonably

16   gave diminished weight to Chen’s witness testimony because the

17   witness had no personal knowledge of Chen’s entry date.               See

18   Xiao Ji Chen, 471 F.3d at 342.         The agency also reasonably gave

19   diminished weight to letters from Chen’s mother and friends in

20   China because they were authored by interested parties not

21   subject to cross-examination, a ruling that Chen does not

22   challenge.      See Matter of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209,

23   215 (B.I.A. 2010) (giving decreased weight to letters from

                                        7
1    interested witnesses not subject to cross-examination), rev’d

2    on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

3    Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.

4    2013).

5           Given   the   inconsistencies,   which   call   into   question

6    whether Chen was in China in 2010 at the time of the alleged

7    persecution, as well as his failure to rehabilitate his claim

8    with reliable corroborating evidence, it cannot be said “that

9    no    reasonable     fact-finder   could   make   such   an   adverse

10   credibility ruling.”        Xiu Xia Lin, 534 F.3d at 167.         The

11   adverse credibility determination is dispositive of asylum,

12   withholding of removal, and CAT relief because all three forms

13   of relief are based on the same factual predicate.            Paul v.

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

15        III. Frivolousness Finding

16          We find no basis to disturb the agency’s conclusion that

17   Chen knowingly submitted a frivolous application.         The agency

18   employed all four procedural safeguards.          See In re Y-L-, 24

19   I. & N. Dec. 151, 155 (B.I.A. 2007).        Chen had notice of the

20   consequences of filing a frivolous application because there

21   was a written warning immediately above his signature on his

22   application, see Gade Niang v. Holder, 762 F.3d 251, 254 (2d

23   Cir. 2014), and, the IJ put Chen on notice of a potential

                                        8
1    frivolousness determination at his initial merits hearing.

2    The agency rendered an explicit finding that Chen knowingly

3    filed a frivolous application.          The agency’s finding is

4    supported by the record, which, as discussed above, includes

5    evidence that Chen entered United States before the time of the

6    alleged    persecution   in   China.    And   Chen   was    given   an

7    opportunity to account for the discrepancy, but rather than

8    provide evidence of his presence in China, chose simply to deny

9    that he filed for immigration benefits in 2007.

10     IV. Motion to Remand

11          We find no abuse of discretion in the BIA’s denial of Chen’s

12   motion to remand for consideration of new evidence.        See Li Yong

13   Cao, 421 F.3d at 157.      The relevant inquiry is “whether the

14   evidence could have been presented at the hearing before the

15   IJ.”    Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006); see

16   also 8 C.F.R. § 1003.2(c)(1).          Chen’s evidence consisted

17   solely of affidavits and photographs purporting to show his

18   attendance at a wedding in China in 2008, all of which could

19   have presented to the IJ.         See Norani, 451 F.3d at 294.

20   Although Chen argues that he lacked notice that he would need

21   to present evidence from as early as 2008, Chen had notice that

22   the IJ was considering a frivolousness finding based on his

23   entry date and did not produce additional evidence before the

                                       9
1    IJ or explain why he waited to submit evidence until six months

2    after the final merits hearing.     Accordingly, we find no abuse

3    of discretion.   See 8 C.F.R. § 1003.2(c)(1); Li Yong Cao, 421

4    F.3d at 156.

5        For the foregoing reasons, the petition for review is

6    DISMISSED in part and DENIED in part.    As we have completed our

7    review, the pending motion for a stay of removal in this petition

8    is DISMISSED as moot.

 9                                FOR THE COURT:
10                                Catherine O’Hagan Wolfe, Clerk




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