     08-3201-ag (L); 09-0784-ag (Con)
     Chen v. Holder
                                                                                  BIA
                                                                           Schoppert, IJ
                                                                          A098 892 773
                            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 Daniel Patrick Moynihan
 3   United States Courthouse, 500 Pearl Street, in the City of
 4   New York, on the 8 th day of February, two thousand ten.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8                  Chief Judge,
 9            PIERRE N. LEVAL,
10            PETER W. HALL,
11                  Circuit Judges.
12   _______________________________________
13
14   JUN SONG CHEN,
15            Petitioner,
16                                                         08-3201-ag (L);
17                     v.                                  09-0784-ag (Con)
18                                                         NAC
19   ERIC H. HOLDER, JR., UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _______________________________________
23
24
25   FOR PETITIONER:                     Dehai Zhang, Flushing, New York.
1    FOR RESPONDENT:          Tony West, Assistant Attorney
2                             General; Barry J. Pettinato,
3                             Assistant Director; Tim Ramnitz,
4                             Attorney, Office of Immigration
5                             Litigation, United States Department
6                             of Justice, Washington, D.C.
7
8         UPON DUE CONSIDERATION of these petitions for review of

9    two Board of Immigration Appeals (“BIA”) decisions, it is

10   hereby ORDERED, ADJUDGED, AND DECREED, that these petitions

11   for review are DENIED.

12        Jun Song Chen, a native and citizen of the People’s

13   Republic of China, seeks review of: (1) a June 5, 2008 order

14   of the BIA, affirming the September 22, 2006 decision of

15   Immigration Judge (“IJ”) Douglas Schoppert, which denied his

16   application for asylum, withholding of removal, and relief

17   under the Convention Against Torture (“CAT”), In re Jun Song

18   Chen, No. A098 892 773 (B.I.A. June 5, 2008), aff’g No. A098

19   892 773 (Immig. Ct. N.Y. City Sept. 22, 2006); and (2) a

20   February 19, 2009 order of the BIA, denying his motion to

21   reopen, In re Jun Song Chen, No. A098 892 773 (B.I.A. Feb.

22   19, 2009).    We assume the parties’ familiarity with the

23   underlying facts and procedural history in this case.

24   I.   Docket Number 08-3201-ag

25         We review the agency’s factual findings, including

26   adverse credibility findings, under the substantial evidence

27   standard.    See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia


                                     2
1    Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).     We

2    review de novo questions of law and the application of law

3    to undisputed fact.   Salimatou Bah v. Mukasey, 529 F.3d 99,

4    110 (2d Cir. 2008).

5        Substantial evidence supports the IJ’s adverse

6    credibility determination.   In rendering his decision, the

7    IJ did not err in finding implausible that Chen’s father

8    would submit an affidavit in support of his son’s asylum

9    application, when Chen’s father allegedly beat him severely

10   on two occasions because of Chen’s homosexuality.     See Siewe

11   v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (finding

12   that “speculation that inheres in inference is not ‘bald’ if

13   the inference is made available to the factfinder by record

14   facts, or even a single fact, viewed in the light of common

15   sense and ordinary experience.”); see also id. at 168

16   (“record support for a contrary inference—even one more

17   plausible or more natural—does not suggest error”).     The

18   implausibility finding is further supported by the striking

19   similarities of substance and wording between Chen’s

20   father’s letter and Chen’s own statement.   See Mei Chai Ye

21   v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007)

22   (stating that “striking similarities between affidavits are

23   an indication that the statements are ‘canned’”); Surinder

                                   3
1    Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006); see also

2    Ying Li v. BCIS, 529 F.3d 79, 82 (2d Cir. 2008) (“[W]hen an

3    adverse credibility finding is based partly or entirely on

4    implausibility, [this Court] review[s] the entire record,

5    not whether each unusual or implausible feature of the

6    account can be explained or rationalized.”).     Having called

7    Chen’s credibility into question, the IJ also reasonably

8    relied on his failure to submit corroborating evidence from

9    his boyfriend.    See Biao Yang v. Gonzales, 496 F.3d 268, 273

10   (2d Cir. 2007) (recognizing that an applicant’s failure to

11   corroborate his testimony may bear on credibility because

12   the absence of corroboration in general makes an applicant

13   unable to rehabilitate testimony that has already been

14   called into question); see also Maladho Djehe Diallo v.

15   Gonzales, 445 F.3d 624, 633-34 (2d Cir. 2006).

16       Because a reasonable fact-finder would not be compelled

17   to conclude to the contrary, the IJ’s adverse credibility

18   determination was supported by substantial evidence.       See

19   Xiu Xia Lin, 534 F.3d at 165-66.    The agency therefore

20   properly denied Chen’s applications for asylum, withholding

21   of removal, and CAT relief insofar as they were based on his

22   sexual orientation.    See Paul v. Gonzales, 444 F.3d 148, 156

23   (2d Cir. 2006).

                                    4
1        Substantial evidence also supports the agency’s denial

2    of Chen’s application for CAT relief based on his claim of a

3    likelihood of torture for having departed China illegally.

4    Notwithstanding generalized evidence indicating that torture

5    occurs in Chinese prisons, an applicant cannot demonstrate

6    that he is more likely than not to be tortured “based solely

7    on the fact that []he is part of the large class of persons

8    who have left China illegally.”   Mu Xiang Lin v. U.S. Dep’t

9    of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005); see also

10   Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d Cir. 2007)

11   (holding that beyond evidence of inhumane prison conditions,

12   a CAT claimant must provide some evidence that the

13   authorities act with the specific intent to inflict severe

14   physical or mental pain or suffering on those detained).

15   Because Chen provided no basis for the agency to conclude

16   that he, or someone in his “particular alleged

17   circumstances,” faces an elevated risk of persecution or

18   torture, Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d

19   Cir. 2003), the agency did not err in denying his

20   application for CAT relief based on his illegal departure.

21   See Mu Xiang Lin, 432 F.3d at 160; see also Mu-Xing Wang,

22   320 F.3d at 143-44.


                                  5
1    II.   Docket Number 09-0784-ag

2          The BIA’s denial of a motion to reopen is reviewed for

3    abuse of discretion.    See Kaur v. BIA, 413 F.3d 232, 233 (2d

4    Cir. 2005) (per curiam).    When the agency considers relevant

5    evidence of country conditions in evaluating a motion to

6    reopen, we review the agency’s factual findings under the

7    substantial evidence standard.       See Jian Hui Shao v.

8    Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).       The BIA did not

9    abuse its discretion in denying Chen’s motion to reopen

10   based on his failure to establish his prima facie

11   eligibility for relief.    See INS v. Abudu, 485 U.S. 94, 104

12   (1988).

13         As the BIA concluded, Chen did not establish his prima

14   facie eligibility for relief because he failed to show that

15   the Chinese government was aware of or was likely to become

16   aware of his China Democracy Party (“CDP”) activities in the

17   United States.   See Hongsheng Leng v. Mukasey, 528 F.3d 135,

18   143 (2d Cir. 2008).    The BIA did not err in rejecting as

19   insufficient the generalized statement in the 2005 U.S.

20   Department of State “Profile of Asylum Claims and Country

21   Conditions” that “[t]he Chinese government sometimes

22   monitors the political activities of students or exchange


                                      6
1    scholars living abroad.”   See Jian Hui Shao v. Mukasey, 546

2    F.3d 138, 169-72 (2d Cir. 2008) (noting that “[w]e do not

3    ourselves attempt to resolve conflicts in record evidence, a

4    task largely within the discretion of the agency”).

5        The evidence that Chen submitted in support of his

6    motion to reopen did not indicate that he had been publicly

7    identified as a CDP member and therefore did not show that

8    the Chinese government would likely discover his CDP

9    activities in the United States.   Because the BIA did not

10   err in finding that Chen failed to demonstrate his prima

11   facie eligibility for relief based on his CDP activities, it

12   did not abuse its discretion in denying his motion to

13   reopen.   See Abudu, 485 U.S. at 104.

14       For the foregoing reasons, the petitions for review are

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

16   removal that the Court previously granted in these petitions

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

18   these petitions is DISMISSED as moot.   Any pending request

19   for oral argument in these petitions is DENIED in accordance

20   with Federal Rule of Appellate Procedure 34(a)(2), and

21   Second Circuit Local Rule 34(b).

22                               FOR THE COURT:
23                               Catherine O’Hagan Wolfe, Clerk
24
25
26


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