         09-4396-ag
         Chen v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A093 397 420
                           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 3 rd day of August, two thousand ten.
 5
 6       PRESENT:
 7                DEBRA ANN LIVINGSTON,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                         Circuit Judges.
11       _______________________________________
12
13       XIONG CHEN,
14                Petitioner,
15
16                        v.                                    09-4396-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Zhiyuan Qian, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Civil Division; Richard M.
27                                     Evans, Assistant Director; Ann
28                                     Carroll Varnon, Civil Division,
29                                     United States Department of Justice,
30                                     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 is

4    DENIED.

5          Xiong Chen, a native and citizen of the People’s Republic

6    of China, seeks review of a September 25, 2009, order of the

7    BIA, affirming the February 19, 2009, decision of Immigration

8    Judge (“IJ”) Barbara A. Nelson, which denied his application

9    for   asylum,   withholding   of    removal,      and   relief    under   the

10   Convention Against Torture (“CAT”).               In re Xiong Chen, No.

11   A093 397 420 (B.I.A. Sept. 25, 2009), aff’g No. A093 397 420

12   (Immig. Ct. N.Y. City Feb. 19, 2009).             We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15         Under   the   circumstances    of   this     case,   we    review   the

16   decision of the IJ as supplemented by the BIA.                  See Yan Chen

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).              The applicable

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

19   1252(b)(4)(B).

20         Substantial    evidence      supports      the    agency’s     adverse

21   credibility determination.      Under the REAL ID Act, considering

22   the totality of the circumstances, a trier of fact may base a

23   credibility     determination      on,    among    other    factors,      the

                                         2
1    consistency   between     the      applicant’s     written      and   oral

2    statements, the consistency of such statements with other

3    evidence of record, and any inaccuracies or falsehoods in such

4    statements,   without    regard     to   whether   an     inconsistency,

5    inaccuracy, or falsehood goes to the heart of the applicant’s

6    claim.   See 8 U.S.C. § 1158(b)(1)(B)(iii).             Here, the agency

7    reasonably relied on: (1) Chen’s omission from his asylum

8    application and the supporting documents of any allegation

9    that he actively resisted the family planning cadres; (2)

10   inconsistencies between Chen’s testimony that he and his wife

11   went into hiding in his aunt’s house in October 1998 and his

12   aunt’s letter, which indicates they went into hiding in July

13   1998; and (3) a lack of reliable corroboration.                  See id.

14   While the IJ’s finding that Chen’s wife failed to indicate in

15   her letter that she was subjected to a forced abortion was

16   unsupported   by   the   record,    remand   due   to    this   erroneous

17   finding would be futile as the IJ relied on “substantial

18   evidence in the record” which, “considered in the aggregate,”

19   supported her adverse credibility determination, and therefore

20   “disregarding those aspects of the IJ’s reasoning that are

21   tainted by error, we can state with confidence that the same

22   decision would be made were the petition remanded.”               Xiao Ji



                                         3
1    Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir.

2    2006).        Moreover, the agency did not err in declining to

3    credit the explanations Chen offered for the discrepancies.

4    See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

5    Thus,    the    agency’s      adverse    credibility       determination    with

6    respect to Chen’s family planning claim was fatal to his

7    application for asylum and withholding of removal.                     See Paul

8    v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

9           To     the    extent    Chen    claimed    that     he    suffered   past

10   persecution on account of his attempted illegal departure from

11   China, the agency reasonably concluded that the harm Chen

12   suffered       did   not   rise   to    the   level   of   persecution.      See

13   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

14   Cir. 2006).          Rather, the record supports the IJ’s findings

15   that the treatment Chen experienced constituted prosecution

16   for his crime of departing without permission rather than

17   persecution.         See Saleh v. U.S. Dep't of Justice, 962 F.2d

18   234,    239    (2d    Cir.    1992)    (“Punishment      for    violation   of   a

19   generally applicable criminal law is not persecution.”).

20          Furthermore, the agency reasonably concluded that Chen

21   failed to establish that he would be subjected to future

22   persecution or torture on account of his illegal departure



                                               4
1    where the 2007 Department of State Profile of Asylum Claims

2    and   Country   Conditions   indicates   that   Chinese   citizens

3    returned from the United States are generally not harmed or

4    mistreated.     See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d

5    Cir. 2006); Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d

6    156, 159-60 (2d Cir. 2005).

7          For the foregoing reasons, the petition for review is

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

9    that the Court previously granted in this petition is VACATED,

10   and any pending motion for a stay of removal in this petition

11   is DISMISSED as moot. Any pending request for oral argument in

12   this petition is DENIED in accordance with Federal Rule of

13   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

14   34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17
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