    12-3275
    Chen v. Holder
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A087 980 894
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 11th day of June, two thousand fourteen.

    PRESENT: JOHN M. WALKER, JR.,
             REENA RAGGI,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    CAI HUA CHEN,
             Petitioner,

                     v.                                    12-3275
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Ramesh    K.        Shrestha,       New York,
                                  New York.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Paul Fiorino, Senior
                                  Litigation Counsel; Andrew B. Insenga,
                                  Trial Attorney, Office of Immigration
                                  Litigation, United States Department
                                  of Justice, Washington, D.C.
       UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

       Cai Hua Chen, a native and citizen of the People’s

Republic of China, seeks review of a July 24, 2012 order of

the BIA affirming the February 4, 2011 decision of Immigration

Judge     (“IJ”)   Jesse    B.   Christensen,    which     denied   her

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).            See In re Cai

Hua Chen, No. A087 980 894 (B.I.A. July 24, 2012), aff’g No.

A087 980 894 (Immig. Ct. N.Y. City Feb. 4, 2011).            We assume

the    parties’    familiarity   with   the   underlying    facts   and

procedural history in this case.

       Under the circumstances of this case, we have reviewed

the decision of the IJ as supplemented and modified by the

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

520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268,

271 (2d Cir. 2005).        The applicable standards of review are

well established.       See 8 U.S.C. § 1252(b)(4)(B); see also

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

       For applications such as Chen’s, governed by the REAL ID

Act of 2005, the agency may, “[c]onsidering the totality of

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the    circumstances,”         base     a       credibility    finding    on   the

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

plausibility       of   her    account,         and    inconsistencies    in   her

statements, without regard to whether they go “to the heart of

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

Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).                          We

“defer to an IJ’s credibility determination unless, from the

totality of the circumstances, it is plain that no reasonable

fact-finder could make” such a ruling.                    Xiu Xia Lin, 534 F.3d

at 167.

       As a preliminary matter, the BIA did not err in denying

asylum based on the IJ’s adverse credibility determination.

Although the BIA may not make findings of fact, 8 C.F.R.

§ 1003.1(d)(3)(iv), here, it relied only on the IJ’s findings

that    Chen   lacked     credibility            and    did   not   independently

corroborate her testimony to determine that she failed to

establish her eligibility for asylum, see id. § 1208.13(a).

       Moreover,    the       adverse       credibility       determination     is

supported by substantial evidence.                      The agency reasonably

based its credibility finding on the inconsistency between

Chen’s testimony that she hid in her sister’s home after she

removed her intrauterine device in October 2004 and her

application statement that she hid there after discovering her

                                            3
second     pregnancy   in    January   2005.     See   8   U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at

167 (providing that an IJ may support an adverse credibility

determination with “any inconsistency”).       The IJ reasonably

rejected Chen’s explanation that she did not prepare her

application with detail, given that her application clearly

states that she hid in her sister’s home to evade detection of

her second pregnancy.       See Majidi v. Gonzales, 430 F.3d 77,

80-81 (2d Cir. 2005).

       The adverse credibility determination is also supported

by the IJ’s observation that Chen was evasive and hesitant

while testifying to how she hired a smuggler and the age of

her eldest son.    See Li Hua Lin v. U.S. Dep’t of Justice, 453

F.3d 99, 109 (2d Cir. 2006) (upholding a negative demeanor

finding when supported by specific instances of inconsistent

testimony).     Although Chen argues that her delay in stating

her son’s age was due to difficulty converting dates from the

Chinese to the U.S. calendar, the IJ was not required to

credit this explanation as the record indicates that it was

the IJ who, with the aid of the interpreter, converted the

age.     See Majidi, 430 F.3d at 80-81.

       Chen also argues that the BIA erroneously required her to

provide corroborating documents from her persecutor by finding

                                  4
that the sterilization document did not rehabilitate her

testimony.       To the contrary, the BIA relied on the lack of

corroboration only to affirm the IJ’s determination that

Chen’s non-credible testimony and documentary evidence did not

satisfy    her   burden   of   proof.    Chen’s   failure    to   submit

independent, reliable corroborating evidence made her unable

to rehabilitate her testimony. See Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 341 (2d Cir. 2006).

    Given     the   inconsistent    dates   and   Chen’s    problematic

demeanor, the totality of the circumstances supports the

agency’s adverse credibility determination.             See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.               Because

the only evidence of a threat to Chen’s life or freedom based

on her violation of China’s family planning policy depended

upon her credibility, the adverse credibility determination in

this case necessarily precludes all forms of relief. See Paul

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

    Chen     additionally      argues   that   she   established     her

eligibility for relief from removal because she would be

arrested, detained, and harmed based on her illegal departure

from China.      However, prosecution for illegal departure does

not constitute persecution absent evidence that prosecuting

authorities have a motive other than law enforcement, which

                                   5
Chen did not allege.         See Saleh v. U.S. Dep’t of Justice, 962

F.2d    234,    239    (2d   Cir.   1992).      Nor    did    Chen   submit

particularized        evidence   that    she   would   be    intentionally

tortured.      See Pierre v. Gonzales, 502 F.3d 109, 121 (2d Cir.

2007); Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,

157-60 (2d Cir. 2005). Accordingly, the agency did not err in

denying relief based on Chen’s illegal departure.                    See 8

U.S.C. § 1158(b); 8 C.F.R. §§ 1208.16(b)-(c), 1208.17(a).

       For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot.         Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                        FOR THE COURT:
                        Catherine O’Hagan Wolfe, Clerk of Court




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