         13-1104
         Chen v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A094 798 807
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of August, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YINGYUE CHEN,
14                Petitioner,
15
16                        v.                                    13-1104
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Steven M. Riker, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Anthony P. Nicastro, Senior
28                                     Litigation Counsel; Tracey N.
29                                     McDonald, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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

 4   is DENIED.

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

 6   Republic of China, seeks review of a February 28, 2013,

 7   decision of the BIA affirming an Immigration Judge’s (“IJ”)

 8   January 6, 2011, decision, denying his application for

 9   asylum, withholding of removal, and relief under the

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

11   A094 798 807 (B.I.A. Feb. 28, 2013), aff’g No. A094 798 807

12   (Immig. Ct. N.Y. City Jan. 6, 2011).    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 have reviewed

16   the decision of the IJ as modified and supplemented by the

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

18   520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268,

19   271 (2d Cir. 2005).    The applicable standards of review are

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

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

22



                                     2
 1       For applications such as Chen’s, governed by the REAL

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

 3   of the circumstances,” base a credibility finding on the

 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);

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

 9   (per curiam).    We “defer therefore to an IJ’s credibility

10   determination unless, from the totality of the

11   circumstances, it is plain that no reasonable fact-finder

12   could make” such a ruling.    Xiu Xia Lin, 534 F.3d at 167.

13       Here, the IJ reasonably based the adverse credibility

14   determination on omissions in Chen’s testimony and

15   documentary evidence.    Chen testified that he was able to

16   evade arrest by police who raided his unregistered church

17   because he was “near the door.”    In his asylum application

18   statement, he did not mention his proximity to a door, only

19   that he fled.    Yet, in an amended statement, he related that

20   he was initially near the front door but was pushed back to

21   the rear door.    The agency incorrectly characterized Chen’s

22   accounts as inconsistent, given that he did not specify


                                    3
 1   which door he was near during his testimony and did not

 2   mention his position at all in his original statement.

 3   Nevertheless, the two initial statements omitted detail and

 4   those omissions may be considered in assessing credibility.

 5   See Xiu Xia Lin, 534 F.3d at 166 n.3 (explaining that “[a]n

 6   inconsistency and omission are . . .    functionally

 7   equivalent”).

 8       These omissions alone would not support the adverse

 9   credibility determination, but for the major omission

10   related to the basis of Chen’s fear of future harm.     Chen’s

11   mother’s letter failed to mention three police visits to her

12   home to which Chen testified as occurring following the

13   church raid.    Although he explained that his mother gave

14   less detail because she thought the visits were less

15   important, the IJ reasonably rejected that explanation

16   because the visits were central to establishing a future

17   fear of persecution.    See Majidi v. Gonzales, 430 F.3d 77,

18   80-81 (2d Cir. 2005).    Nor was the IJ required to credit an

19   amended letter from Chen’s mother because she was an

20   interested witness, not subject to cross-examination, and

21   the letter was subject to more scrutiny because it was

22   created in response to the IJ’s decision pointing out


                                    4
 1   omissions in the first letter.    See Xiao Ji Chen v. U.S.

 2   Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the

 3   weight accorded to documentary evidence lies largely within

 4   agency’s discretion); see also Matter of H-L-H- & Z-Y-Z-, 25

 5   I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished

 6   evidentiary weight to letters from “relatives and friends,”

 7   because they were from interested witnesses not subject to

 8   cross-examination), rev’d on other grounds by Hui Lin Huang

 9   v. Holder, 677 F.3d 130 (2d Cir. 2012).

10       Although Chen submitted additional corroborating

11   letters from his aunt and friends, the IJ reasonably found

12   that they did not rehabilitate his testimony because the

13   authors were interested parties not subject to cross-

14   examination.   See Xiao Ji Chen, 471 F.3d at 342; see also

15   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

16   (holding that corroboration is needed to rehabilitate non-

17   credible testimony).   It is not apparent whether the IJ

18   considered a summons for Chen’s aunt, for harboring Chen, or

19   an arrest warrant for his friend, based on her involvement

20   in an “evil cult,” but the record does not compel the

21   conclusion that the IJ did not consider them: the summons

22   and warrant did not pertain to Chen personally and did not

23   evidence the treatment of Christians, only abettors and cult
                                   5
 1   participants.    See Wei Guang Wang v. BIA, 437 F.3d 270, 275

 2   (2d Cir. 2006) (stating that IJs need not parse or refute

 3   every piece of evidence if the findings are reasoned and

 4   adequate).   Moreover, the summons and warrant do not

 5   contradict the IJ’s finding that there was no pattern or

 6   practice of persecution of Christians in China, which was

 7   reasonably based on a State Department report indicating

 8   that the treatment of Christians varied by region.       See Jian

 9   Hui Shao v. Mukasey, 546 F.3d 138, 142, 149 (2d Cir. 2008)

10   (upholding finding of no pattern or practice of persecution

11   due to local variations of policy enforcement).

12       Because the omissions related to the single incident of

13   past harm and Chen’s fear of future persecution by the

14   Chinese government, and there was no convincing evidence to

15   rehabilitate that testimony, the totality of the

16   circumstances supports the agency’s adverse credibility

17   determination.    See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

18   1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167.    Because the

19   only evidence of a threat to Chen’s life or freedom depended

20   upon his credibility, the adverse credibility determination

21   necessarily precludes success on his claims for asylum,

22   withholding of removal, and CAT relief.    See Paul v.

23   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
                                    6
 1   II. Due Process

 2       An alien in removal proceedings is entitled to the due

 3   process right of a full and fair opportunity to present his

 4   claims.     Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.

 5   2007).     To establish a due process violation, an alien must

 6   demonstrate both error and substantial prejudice.     Miller v.

 7   Mukasey, 539 F.3d 159, 164 (2d Cir. 2008).     Here, there is

 8   neither.     Contrary to Chen’s argument, the IJ did not

 9   prohibit him from testifying at the hearing on remand.       His

10   counsel chose not to proffer his testimony because, as

11   counsel conceded, the testimony was not based on personal

12   experience and the IJ, in response to counsel’s request for

13   guidance, indicated that such hearsay evidence was not

14   necessary.     Moreover, no prejudice resulted because the

15   record reflects that the IJ considered all the new evidence

16   of conditions in China, to which Chen intended to testify.

17   Accordingly, Chen has not established constitutional error.

18   See Burger, 498 F.3d at 134.

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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

23   this petition is DISMISSED as moot.     Any pending request for

                                     7
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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