         11-628-ag
         Chen v. Holder
                                                                                       BIA
                                                                                 LaForest, IJ
                                                                               A088 533 169
                                                                               A088 533 170
                           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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 3rd day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROBERT A. KATZMANN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _______________________________________
12
13       HUIRONG CHEN, FA QIN SUN,
14                Petitioners,
15
16                        v.                                    11-628-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONERS:              Andy Wong, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Alison Marie Igoe, Senior
27                                     Litigation Counsel; Glen T. Jaeger,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the Petitioners’

 4   petition for review is DENIED.

 5       Huirong Chen and Fa Qin Sun, natives and citizens of

 6   China, seek review of a January 28, 2011 decision of the BIA

 7   affirming the January 7, 2009 decision of an immigration

 8   judge (“IJ”) denying their application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Huirong Chen and Fa Qin Sun,

11   Nos. A088 533 169/170 (B.I.A. Jan. 28, 2011), aff’g Nos.

12   A088 533 169/170 (Immig. Ct. N.Y. City Jan. 7, 2009).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history of this case, which we reference only

15   as necessary to explain our decision.

16       We have reviewed the IJ’s opinion as supplemented and

17   modified by the BIA’s decision, excluding the portions of

18   the IJ’s decision not relied upon by the BIA.   See Xue Hong

19   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

20   2005).   The applicable standards of review are well-

21   established.   See 8 U.S.C. § 1252(b)(4)(B); Shu Wen Sun v.

22   BIA, 510 F.3d 377, 379 (2d Cir. 2007).   On appeal to the

23   BIA, petitioners failed to challenge the IJ’s denial of

                                   2
 1   relief sought by Petitioners based on Chen’s Christian faith

 2   or political activities in the United States.     Accordingly,

 3   we address only the denial of relief requested based on

 4   Chen’s claim that she suffered a forced abortion.     See

 5   Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).

 6       We conclude that the agency’s adverse credibility

 7   determination is supported by substantial evidence and is

 8   dispositive.   We “defer . . . to an IJ’s credibility

 9   determination unless, from the totality of the

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

11   could make such an adverse credibility ruling.”     Xiu Xia Lin

12   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).     For asylum

13   applications governed by the REAL ID Act, such as this one,

14   the agency may, considering the totality of the

15   circumstances, base a credibility finding on an asylum

16   applicant’s demeanor, the plausibility of her account, and

17   inconsistencies in her statements, without regard to whether

18   they go “to the heart of the applicant’s claim.”     8 U.S.C. §

19   1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

20       On several occasions, Chen gave non-responsive answers

21   to key questions, and several questions had to be repeated




                                   3
 1   numerous times before she gave a responsive answer.1    We

 2   give particular deference to an IJ’s observations regarding

 3   an applicant’s demeanor.     See Majidi v. Gonzales, 430 F.3d

 4   77, 81 n.1 (2d Cir. 2005).    The demeanor finding in this

 5   case was supported by multiple specific instances of non-

 6   responsive testimony.   See Li Hua Lin v. U.S. Dep’t of

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

 8       Petitioner’s argument that her lack of education

 9   explains her non-responsive answers is not persuasive.       The

10   questions asked of her were about her own personal

11   experiences.   Further, there was no evidence to support her

12   passing assertion that she may suffer from mental

13   retardation.   We will not overturn an adverse credibility

14   finding absent record evidence that compels reversal,

15   Majidi, 430 F.3d at 79-80, and this record is barren of such

16   evidence.

17       Further, although Petitioner argues that the agency

18   erred in applying the adverse credibility finding it made

19   regarding Petitioner’s religious and political activity


           1
             We address only those findings affirmed by the BIA
       and do not reach the finding that the BIA expressly
       declined to address, i.e., the finding related to Chen’s
       testimony regarding the type of abortion she underwent.
       See Xue Hong Yang, 426 F.3d at 522.
                                     4
 1   claims to her forced abortion claim, this Court has held

 2   that “a single false document or a single instance of false

 3   testimony may (if attributable to the petitioner) infect the

 4   balance of the alien’s uncorroborated or unauthenticated

 5   evidence.”    Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

 6   2007).

 7       We also find no error in the agency’s finding that

 8   Chen’s failure to supply corroboration of her claims

 9   supported the adverse credibility determination.       See Biao

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

11   curiam). The decision to afford the letter from Chen’s

12   mother limited weight was likewise within the agency’s

13   discretion.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

14   F.3d 315, 342 (2d Cir. 2006).       Further, Chen’s argument that

15   the BIA improperly applied a de novo standard of review to

16   the IJ’s fact-finding is without merit, as the BIA expressly

17   applied the proper “clearly erroneous” standard set forth in

18   8 C.F.R. § 1003.1(d)(3)(i).

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
                                     5
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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