     17-252
     Chen v. Sessions
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A087 785 292
                             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 5th day of June, two thousand eighteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            JOSÉ A. CABRANES,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   YAN QI CHEN,
14                            Petitioner,
15
16                      v.                                       17-252
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20                 Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                        G. Victoria Calle, New York, NY.
24
25   FOR RESPONDENT:                        Chad A. Readler, Acting Assistant
26                                          Attorney General; Linda S.
27                                          Wernery, Assistant Director;
28                                          Thankful T. Vanderstar, Trial
29                                          Attorney, Office of Immigration
1                                 Litigation, United States
2                                 Department of Justice, Washington,
3                                 DC.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

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

8    is DENIED.

9        Petitioner Yan Qi Chen, a native and citizen of the

10   People’s Republic of China, seeks review of a January 12,

11   2017, decision of the BIA affirming a March 22, 2016, decision

12   of an Immigration Judge (“IJ”) denying Chen’s application for

13   asylum,   withholding   of   removal,   and   relief   under   the

14   Convention Against Torture (“CAT”).     In re Yan Qi Chen, No.

15   A 087 785 292 (B.I.A. Jan. 12, 2017), aff’g No. A 087 785 292

16   (Immig. Ct. N.Y. City Mar. 22, 2016).    We assume the parties’

17   familiarity with the underlying facts and procedural history

18   in this case.

19       We have reviewed the IJ’s decision as modified by the

20   BIA, reaching only the bases for the adverse credibility

21   ruling that the BIA adopted.    See Xue Hong Yang v. U.S. Dep’t

22   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).      We review the

23   agency’s factual findings, including its adverse credibility
                                     2
1    determination,       for   substantial      evidence.        See       8 U.S.C.

2    § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

3    66 (2d Cir. 2008).

4    I.    Adverse Credibility

5          The   agency    may,    “[c]onsidering    the     totality        of    the

6    circumstances,” base an adverse credibility ruling on an

7    applicant’s “demeanor, candor, or responsiveness,” as well as

8    any inconsistencies within or between an applicant’s and

9    witness’s     written        and   oral     statements.            8    U.S.C.

10   § 1158(b)(1)(B)(iii).         “We defer . . . to an IJ’s credibility

11   determination unless . . . it is plain that no reasonable

12   fact-finder could make such an adverse credibility ruling.”

13   Xiu Xia Lin, 534 F.3d at 167.

14        Substantial evidence supports the agency’s determination

15   that Chen’s testimony regarding the events in China was not

16   credible.    The     agency    reasonably    relied     on   the       lack   of

17   consistency between Chen’s testimony that he was arrested for

18   attending an underground church in 2007, and his application,

19   which identified his arrest as occurring in 2008.                  The agency

20   noted that this inconsistency may have been attributable to

21   an innocent cause such as nervousness, but it was compounded
                                          3
1    by Chen’s testimony that his wife’s forced abortion took place

2    in 2006.       This testimony contradicted his application as well

3    as his wife’s testimony and letter, which gave the date of

4    the    abortion    as   November      2007.         The    agency    reasonably

5    determined that Chen’s inability to remember the relevant

6    years of the two events that formed the basis of his claim

7    undermined his credibility.            See Xian Tuan Ye v. Dep’t of

8    Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“[A] material

9    inconsistency in an aspect of [an applicant]’s story that

10   served as an example of the very persecution from which he

11   sought asylum . . . afforded substantial evidence to support

12   the adverse credibility finding.” (internal quotation marks

13   and citation omitted)).         The negative demeanor finding, based

14   on    Chen’s    multiple   long     pauses    and     difficulty      answering

15   questions, further supports the adverse credibility ruling.

16   See 8 U.S.C. § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t

17   of    Justice,    453   F.3d   99,    109     (2d    Cir.    2006)   (granting

18   particular       deference     to    credibility          findings   based   on

19   applicant’s demeanor).

20         Because the adverse credibility ruling is dispositive of

21   Chen’s past persecution claims, we do not reach the agency’s
                                            4
1    alternative ruling that even if Chen is credible, the harm

2    Chen testified to did not rise to the level of persecution.

3    INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule

4    courts and agencies are not required to make findings on

5    issues the decision of which is unnecessary to the results

6    they reach.”).

7 II.    Well-Founded Fear

8        The    agency   accepted    that     Chen       currently    practices

9    Christianity in the United States.              To establish a well-

10   founded fear of persecution on this basis, Chen was required

11   to show that the Chinese government is “either aware . . .

12   or likely to become aware” of his practice of Christianity.

13   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).

14   Chen argues that he met this burden by showing a pattern or

15   practice   of   persecution    of    Christians      who   are   similarly

16   situated   to   him.    See    8     C.F.R.     §    1208.13(b)(2)(iii).

17   However, we decline to reach Chen’s pattern or practice claim

18   because, as the Government argues, he did not adequately raise

19   it before the IJ or BIA.            See Lin Zhong v. U.S. Dep’t of

20   Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing that

21   judicially imposed issue exhaustion is mandatory); Foster v.
                                          5
1    U.S.    INS,   376   F.3d   75,   78   (2d   Cir.   2004)   (issues   must

2    generally be raised before the BIA in order to be preserved

3    for judicial review).

4           For the foregoing reasons, the petition for review is

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

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

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

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

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

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

11   34.1(b).

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




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