         13-917
         Chen v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A089 100 073
                           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 27th day of August, two thousand fourteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       BIN XUN CHEN, AKA BING SONG CHEN,
14                Petitioner,
15
16                        v.                                    13-917
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Nataliya I. Gavlin, Gavlin &
24                                     Associates, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Mary Jane Candaux,
28                                     Assistant Director; Robbin K.
29                                     Blaya, 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       Bin Xun Chen, a native and citizen of the People’s

 6   Republic of China, seeks review of a February 26, 2013,

 7   decision of the BIA affirming the April 19, 2011, decision

 8   of Immigration Judge (“IJ”) Mary M. Cheng, which denied his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Bin Xun

11   Chen, No. A089 100 073 (B.I.A. Feb. 26, 2013), aff’g No.

12   A089 100 073 (Immig. Ct. N.Y. City Apr. 19, 2011).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

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

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

18   applicable standards of review are well established.        See 8

19   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

20   513 (2d Cir. 2009).

21       For asylum applications, like Chen’s, governed by the

22   amendments made to the Immigration and Nationality Act by

23   the REAL ID Act of 2005, the agency may, “[c]onsidering the

                                  2
 1   totality of the circumstances,” base a credibility finding

 2   on an asylum applicant’s “demeanor, candor, or

 3   responsiveness,” and the plausibility and consistency of his

 4   account, without regard to whether they go “to the heart of

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

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

 7   Furthermore, for purposes of a credibility determination,

 8   “[a]n inconsistency and an omission are . . . functionally

 9   equivalent.”   Xiu Xia Lin, 534 F.3d at 166.    We “defer to an

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

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

12   finder could make” such a ruling.     Id. at 167.   In this

13   case, the agency reasonably based its adverse credibility

14   determination on Chen’s demeanor, the inconsistencies in his

15   evidence, and the lack of plausible explanation for those

16   inconsistencies.

17       The IJ found that Chen’s testimony often seemed non-

18   responsive, evasive, and rehearsed.    We generally afford

19   particular deference to an IJ’s assessment of an applicant’s

20   demeanor because the IJ’s ability to observe the witness

21   places her in the best position to evaluate credibility.

22   See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d


                                   3
 1   Cir. 2005).   We can be even “more confident in our review of

 2   observations about an applicant’s demeanor” where, as here,

 3   those observations “are supported by specific examples of

 4   inconsistent testimony.”   Li Hua Lin v. U.S. Dep’t of

 5   Justice, 453 F.3d 99, 109 (2d Cir. 2006).

 6       Chen’s asylum application, his testimonial evidence,

 7   and his wife’s affidavit give differing versions of what

 8   occurred on July 17, 2002, the day Chen was allegedly

 9   assaulted by family planning officials who came to Chen’s

10   home to take his wife to be sterilized, after which he

11   escaped and left his home for four years.   The accounts vary

12   as to whether the family planning officials entered Chen’s

13   home, whether he pushed them before they began beating him,

14   at what point he called for his relatives to help him, and

15   (crucially) how he escaped.   At various points, Chen and his

16   wife indicated: that his relatives arrived to confront the

17   family planning officials and he escaped unnoticed in the

18   turmoil; that his relatives pushed all the family planning

19   officials out of the home and he escaped; that he ran away

20   but the officials chased him; and that his relatives pushed

21   the officials away, after which he formulated a plan of

22   escape and left.


                                   4
 1          Because the REAL ID Act permits the agency to base a

 2   credibility finding on any inconsistency, without regard to

 3   whether it goes “to the heart of the applicant’s claim,” 8

 4   U.S.C. § 1158(b)(1)(B)(iii), these inconsistent descriptions

 5   regarding the July 2002 incident provide substantial

 6   evidence supporting the agency’s adverse credibility

 7   determination.    Moreover, they directly relate to Chen’s

 8   allegation of past harm.     See Xiu Xia Lin, 534 F.3d at 166,

 9   167.    Chen was given an opportunity to explain the

10   inconsistencies, but the IJ reasonably rejected his

11   explanation, concluding that it did not plausibly or

12   effectively reconcile the discrepancies.     See Majidi v.

13   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

14          The totality of the circumstances supports the agency’s

15   adverse credibility determination, based on Chen’s

16   unresponsive testimony, omissions, and lack of credible

17   explanation.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

18   Lin, 534 F.3d at 167.

19          Since the only evidence of a threat to Chen’s life or

20   freedom depended upon his credibility, the adverse

21   credibility finding defeats his claims for asylum,

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

23   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

24   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
                                   5
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12
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