     15-4139
     Chen v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 445 592

                             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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   15th day of May, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            RAYMOND J. LOHIER, JR.,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JIN XING CHEN,
14            Petitioner,
15
16                      v.                                           15-4139
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,*
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gerald Karikari, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Douglas


     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jefferson B. Sessions, III, is automatically substituted for
     former Attorney General Loretta E. Lynch as the Respondent in this
     case.
1                               E. Ginsburg, Assistant Director;
2                               Stratton C. Strand, Trial Attorney,
3                               Office of Immigration Litigation,
4                               United States Department of Justice,
5                               Washington, D.C.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

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

10   DENIED.

11       Petitioner Jin Xing Chen, a native and citizen of the

12   People’s Republic of China, seeks review of a November 24, 2015

13   decision of the BIA, affirming a March 26, 2014 decision of an

14   Immigration Judge (“IJ”) denying Chen’s application for asylum,

15   withholding of removal, and relief under the Convention Against

16   Torture (“CAT”).   In re Jin Xing Chen, No. A205 445 592 (B.I.A.

17   Nov. 24, 2015), aff’g No. A205 445 592 (Immig. Ct. N.Y.C Mar.

18   26, 2014).    We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

20       Under the circumstances of this case, we review the IJ’s

21   decision as modified by the BIA.   See Xue Hong Yang v. U.S. Dep’t

22   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).     The applicable

23   standards of review are well established.           See 8 U.S.C.

24   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

25   (2d Cir. 2008).


                                    2
1        For asylum applications like Chen’s, governed by the REAL

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

3    circumstances,” base a credibility finding an applicant’s

4    “demeanor, candor, or responsiveness,” and on inconsistencies

5    in an applicant’s statements and evidence, “without regard to

6    whether”   those   inconsistencies    go   “to   the   heart   of   the

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

8    Lin, 534 F.3d at 163-64.   “We defer . . . to an IJ’s credibility

9    determination unless, from the totality of the circumstances,

10   it is plain that no reasonable fact-finder could make such an

11   adverse credibility ruling.”        Xiu Xia Lin, 534 F.3d at 167.

12   Further, “[a] petitioner ‘must do more than offer a plausible

13   explanation for his inconsistent statements to secure relief;

14   he must demonstrate that a reasonable fact-finder would be

15   compelled to credit his testimony.’”       Majidi v. Gonzales, 430

16   F.3d 77, 80 (2d Cir. 2005) (quoting Zhou Yun Zhang v. U.S. INS,

17   386 F.3d 77, 76 (2d Cir. 2004)).             The totality of the

18   circumstances supports the adverse credibility determination.

19       The agency reasonably relied on inconsistencies relating

20   to Chen’s testimony regarding the treatment of his fellow church

21   members and his practice of Christianity.          Chen submitted a

22   letter from a purported fellow church member in China, Feng

23   Chen, who wrote that he (Feng Chen) was detained for 19 days.
                                     3
1    Chen testified that Feng Chen was detained for “about 40 days”

2    before confessing that he did not read Feng’s letter.              The

3    agency reasonably relied on this inconsistency, 8 U.S.C.

4    § 1158(b)(1)(B)(iii), and reasonably concluded that Chen’s

5    unfamiliarity   with   his    evidence     further   undermined    his

6    credibility, see Majidi, 430 F.3d at 80.          And although Chen

7    challenges this inconsistency as trivial, “an IJ may rely on

8    any inconsistency or omission in making an adverse credibility

9    determination,”   where,     as   here,    “the   ‘totality   of   the

10   circumstances’ establishes that an asylum applicant is not

11   credible.”   Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C.

12   § 1158(b)(1)(B)(iii)).

13       The agency also reasonably relied on an inconsistency

14   concerning Chen’s church attendance in the United States.           8

15   U.S.C. § 1158(b)(1)(B)(iii).      Chen testified that he attends

16   church almost every week, or two to three times per month.         But

17   his letter from his church reflects only 14 visits between

18   August 2012 and February 2014—less than once per month.            The

19   agency was not compelled to accept Chen’s explanation that he

20   sometimes forgot to “clock in” because he made no effort to

21   corroborate that claim.      Administrative Record (“AR”) at 110;

22   see also Majidi, 430 F.3d at 80.          Although Chen presented a

23   witness to corroborate his practice of Christianity in the
                                       4
1    United       States,   the   agency      reasonably        gave   her   testimony

2    diminished weight because she attended church with Chen only

3    once, was unaware of his alleged persecution in China, and

4    believed that he had become a Christian in the United States

5    in 2013, contrary to his testimony that he converted to

6    Christianity in 2008 in China.                 See Xiao Ji Chen v. U.S. Dep’t

7    of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that

8    determining         weight   of     evidence      is   “largely      within    the

9    discretion of the IJ”).

10          The adverse credibility determination is further supported

11   by the IJ’s demeanor finding, to which we defer.                     Majidi, 430

12   F.3d    at    81    n.1.     The    IJ   concluded     that       “frequent   long

13   pauses . . . left the impression that [Chen] was testifying

14   from a script rather than from actual memory.”                          AR at 66.

15   Although Chen now attempts to explain that he paused to jog his

16   memory,       the   agency    was    not       compelled    to    accept   Chen’s

17   explanation.         See Majidi, 430 F.3d at 80; Li Hua Lin v. U.S.

18   Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be

19   still more confident in our review of observations about an

20   applicant’s demeanor where, as here, they are supported by

21   specific examples of inconsistent testimony.”).

22          Having questioned Chen’s credibility, the agency did not

23   err in concluding that Chen’s corroborating evidence was
                                                5
1    insufficient to rehabilitate his testimony.     “An applicant’s

2    failure to corroborate his . . . testimony may bear on

3    credibility, because the absence of corroboration in general

4    makes an applicant unable to rehabilitate testimony that has

5    already been called into question.”   Biao Yang v. Gonzales, 496

6    F.3d 268, 273 (2d Cir. 2007).      The agency reasonably gave

7    diminished weight to letters from Chen’s father, a church

8    official, and a friend in China because they were written by

9    interested parties who were not subject to cross-examination

10   and because Chen “was unfamiliar with some of the documents he

11   submitted.”   AR at 70; see also Matter of H-L-H- & Z-Y- Z-, 25

12   I. & N. Dec. 209, 215 (B.I.A. 2010) (agency can give little

13   weight to document drafted by interested witness not subject

14   to cross examination), rev’d on other grounds by Hui Lin Huang

15   v. Holder, 677 F.3d 130 (2d Cir. 2012); Y.C. v. Holder, 741 F.3d

16   324, 334 (2d Cir. 2013) (“We defer to the agency’s determination

17   of the weight afforded to an alien’s documentary evidence.”).

18       Given these multiple inconsistencies, the IJ’s demeanor

19   finding, and the absence of reliable corroboration for Chen’s

20   assertions, it cannot be said “that no reasonable fact-finder

21   could make such a credibility ruling.”    Xiu Xia Lin, 534 F.3d

22   at 167.   Because Chen’s claims for asylum, withholding of

23   removal, and CAT relief are all based on the same factual
                                    6
1    predicate, the adverse credibility ruling is dispositive of all

2    these claims.   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

3    2006).

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, Clerk




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