     15-1239
     Chen v. Lynch
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A200 894 325

                          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   9th day of August, two thousand sixteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   FEI CHEN,
14                   Petitioner,
15
16                   v.                                              15-1239
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Zhen Liang Li, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Blair T.
27                                       O’Connor,    Assistant     Director;
28                                       Maarja T. Luhtaru, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       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        Petitioner Fei Chen, a native and citizen of the People’s

6    Republic of China, seeks review of a March 19, 2015 decision

7    of the BIA, affirming a September 11, 2013 decision of an

8    Immigration Judge (“IJ”) denying Chen’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).   In re Fei Chen, No. A200 894 325 (B.I.A. Mar.

11   19, 2015), aff’g No. A200 894 325 (Immig. Ct. N.Y. City Sept.

12   11, 2013).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Ordinarily, we review the BIA’s decision – and not the IJ’s

15   on appeal.   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

16   520, 522 (2d Cir. 2005).   Under the circumstances of this case,

17   we review the IJ’s decision as modified by the BIA.      See id.

18   The applicable standards of review are well established.

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

20   165-66 (2d Cir. 2008) (per curiam).


                                     2
1        For asylum applications like Chen’s, governed by the REAL

2    ID Act, the agency may, “[c]onsidering the totality of the

3    circumstances,”     base   a     credibility     finding   on    an   asylum

4    applicant’s    “demeanor,        candor,   or     responsiveness,”         the

5    plausibility   of   his    account,      and    inconsistencies       in   his

6    statements, “without regard to whether” they go “to the heart

7    of the applicant’s claim.”        8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

8    Xia Lin, 534 F.3d at 163-64.         This Court “defer[s] . . . to an

9    IJ’s credibility determination unless, from the totality of the

10   circumstances, it is plain that no reasonable fact-finder could

11   make such an adverse credibility ruling.”           Xiu Xia Lin, 534 F.3d

12   at 167.   As discussed below, substantial evidence supports the

13   agency’s adverse credibility determination.

14       The credibility determination was properly based on the

15   inconsistencies     between       Chen’s       testimony   and    evidence

16   concerning the demolition of his father’s home--the basis of

17   Chen’s asylum claim.       Id.    Chen testified that the government

18   demolished his father’s home in 2010; he also testified that

19   his father moved in with his uncle after the house was destroyed.

20   Chen’s father’s letter, however, was dated 2013 and listed the

21   address of the purportedly demolished home as his return
                                          3
1    address.   When asked to explain why his father would use an

2    address that no longer existed, Chen responded that it was his

3    father’s decision.     The agency was not required to credit this

4    explanation.   See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

5    2005).

6        Nor did the agency err in relying in part on the additional

7    minor inconsistency concerning where Chen’s passport was taken.

8    See Xiu Xia Lin, 534 F.3d at 163-64.     Chen testified that his

9    passport was taken from him at “home” (after allegedly having

10   fled from his father’s home); when asked to clarify what he meant

11   by “home,” Chen said his uncle’s home, which he considered as

12   a home.    The agency reasonably concluded that while the

13   inconsistency was minor, it further called into doubt whether

14   Chen’s father’s home was taken by the government, and the agency

15   did not err in rejecting Chen’s explanation, see Majidi, 430

16   F.3d at 80.

17       Considering the totality of the circumstances, it cannot

18   be said “that no reasonable fact-finder could make such a

19   credibility ruling.”    Xiu Xia Lin, 534 F.3d at 167.   After all,

20   “[a] petitioner ‘must do more than offer a plausible explanation

21   for his inconsistent statements to secure relief; he must
                                      4
1    demonstrate that a reasonable fact-finder would be compelled

2    to credit his testimony.’”        Majidi, 430 F.3d at 80 (quoting Zhou

3    Yun Zhang v. INS, 386 F.3d 66,76 (2d Cir. 2004)).         Because all

4    forms of relief (asylum, withholding of removal, and CAT relief)

5    were    based   on   the   same   factual   predicate,   the   adverse

6    credibility determination is dispositive of all three.            See

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

8           For the foregoing reasons, the petition for review is

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

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

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

12   is DISMISSED as moot.       Any pending request for oral argument

13   in this petition is DENIED in accordance with Federal Rule of

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

15   34.1(b).

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




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