     17-1147
     Chen v. Whitaker
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A201 297 506


                             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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 14th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHI YAO CHEN,
14            Petitioner,
15
16                      v.                                       17-1147
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    David A. Bredin, Flushing,
24                                      NY.
25
26   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
27                                      Attorney General; Jeffery Leist,
28                                      Senior Litigation Counsel; Raya
29                                      Jarawan, Trial Attorney; Abigail
30                                      E. Leach, Law Clerk, Office of
31                                      Immigration Litigation, United
32                                      States Department of Justice,
33                                      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

4    is DENIED.

5        Petitioner Zhi Yao Chen, a native and citizen of the

6    People’s Republic of China, seeks review of the March 28,

7    2017, and May 15, 2015, decisions of the BIA affirming the

8    June 6, 2016, and April 17, 2013, decisions of an Immigration

9    Judge (“IJ”), which denied Chen’s application for asylum,

10   withholding   of   removal,   and       relief   under   the   Convention

11   Against Torture (“CAT”) on credibility grounds.                In re Zhi

12   Yao Chen, No. A201 297 506 (B.I.A. March 28, 2017 and May 15,

13   2015), aff’g No. A201 297 506 (Immig. Ct. N.Y. City June 6,

14   2016 and Apr. 17, 2013).      We assume the parties’ familiarity

15   with the underlying facts and procedural history in this case.

16       We have reviewed the IJ’s decisions as modified by the

17   BIA’s decisions, and address only the adverse credibility

18   determination.     See Xue Hong Yang v. U.S. Dep’t of Justice,

19   426 F.3d 520, 522 (2d Cir. 2005).           The applicable standards

20   of review are well established.           See Xiu Xia Lin v. Mukasey,

21   534 F.3d 162, 165-66 (2d Cir. 2008).

22       “Considering the totality of the circumstances, and all

23   relevant factors, a trier of fact may base a credibility
                                         2
1    determination on the demeanor, candor, or responsiveness of

2    the applicant or witness, . . . the consistency between the

3    applicant’s or witness’s written and oral statements . . . ,

4    the internal consistency of each such statement, [and] the

5    consistency of such statements with other evidence of record

6    .   .    .    .”     8 U.S.C.   § 1158(b)(1)(B)(iii).      Substantial

7    evidence supports the agency’s determination that Chen was

8    not credible as to his claims that he was detained and beaten

9    in China for attending a family church, and that he fears

10   future persecution on account of his religious practice in

11   the United States.

12           The agency reasonably relied in part on Chen’s demeanor.

13   See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430

14   F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular

15   deference is given to the trier of fact’s assessment of

16   demeanor).         The IJ provided specific examples to support the

17   demeanor finding, noting that Chen had difficulty answering

18   questions by his own attorney and became more incoherent on

19   cross examination when asked for details about the community

20   service that the Chinese authorities required him to do after

21   his arrest.

22           The    demeanor    finding   and   the   overall   credibility

23   determination are bolstered by record inconsistencies.             See
                                          3
1    Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

2    Cir.    2006).     The    agency   reasonably           found   that    Chen’s

3    testimony was inconsistent regarding (1) whether he performed

4    mandated community service and the nature of the service,

5    (2) when he was arrested in China, and (3) when he left China.

6    The agency also reasonably found that Chen and his witness

7    were inconsistent about when they met and when they saw each

8    after the witness started her own church.                The agency was not

9    compelled     to   credit       Chen’s     explanations          for        these

10   inconsistencies.         See   8 U.S.C.    § 1158(b)(1)(B)(iii);              see

11   also Majidi, 430 F.3d at 80 (“A petitioner must do more than

12   offer a plausible explanation for his inconsistent statements

13   to secure relief; he must demonstrate that a reasonable fact-

14   finder would be compelled to credit his testimony.” (internal

15   quotation marks omitted)).

16          Although the agency may have placed too much weight on

17   minor inconsistencies in Chen’s descriptions of the weapon

18   the police used to beat him, even assuming error, remand would

19   be futile because Chen’s otherwise inconsistent statements

20   about when he left China, the nature and frequency of his

21   mandatory    community     service,       and     the    timeline      of    his

22   interactions with his witness after she left his church

23   substantially undermine his claim.              See Lianping Li v. Lynch,
                                         4
1    839 F.3d 144, 149 (2d Cir. 2016) (holding that remand is

2    futile if the error-free findings are sufficiently strong and

3    significant such that the Court can be confident that the

4    agency would reach the same decision on remand).

5        Further, the agency properly determined that Chen’s

6    failure to corroborate his testimony affected his

7    credibility.   See Biao Yang v. Gonzales, 496 F.3d 268, 273

8    (2d Cir. 2007) (“An applicant’s failure to corroborate his

9    or her testimony may bear on credibility, because the

10   absence of corroboration in general makes an applicant

11   unable to rehabilitate testimony that has already been

12   called into question.”).   The agency was not required to

13   give weight to a letter from Chen’s father, Y.C. v. Holder,

14   741 F.3d 324, 332 (2d Cir. 2013) (deferring to agency’s

15   decision to afford little weight to petitioner’s husband’s

16   letter), and Chen does not dispute that he did not attempt

17   to obtain other reasonably available evidence, see 8 U.S.C.

18   § 1158(b)(1)(B)(ii) (providing that even if testimony is

19   credible, applicant must present corroborating evidence if

20   IJ finds it necessary and evidence is reasonably

21   available).

22       Given the demeanor, inconsistency, and lack of

23   corroboration findings, the agency’s adverse credibility
                                   5
1    determination is supported by substantial evidence.     See 8

2    U.S.C. § 1158(b)(1)(B)(iii).    Contrary to Chen’s argument

3    that the agency failed to independently evaluate the

4    country conditions relevant to his CAT claim, the adverse

5    credibility determination was dispositive of asylum,

6    withholding of removal, and CAT relief because all three

7    forms of relief relied on the same factual predicate.    See

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

9        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

16   34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe
19                                 Clerk of Court
20




                                    6
