     15-649
     Chen v. Sessions
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A200 933 596

                             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   23rd day of February, two thousand seventeen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   YONG CHEN,
14            Petitioner,
15
16                      v.                                           15-649
17                                                                   NAC
18   JEFF SESSIONS, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.1
21   _____________________________________
22
23   FOR PETITIONER:                     Farah Loftus, Los Angeles, CA.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Anthony
27                                       C. Payne, Assistant Director; Raya

     1
      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jeff Sessions is automatically substituted for former
     Attorney General Loretta E. Lynch as Respondent.
1                                Jarawan, Trial Attorney, Office of
2                                Immigration   Litigation,   United
3                                States   Department  of   Justice,
4                                Washington, DC.
5
6         UPON DUE CONSIDERATION of this petition for review of a

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

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

9    DENIED IN PART and DISMISSED IN PART.

10        Petitioner Yong Chen, a native and citizen of the People’s

11   Republic of China, seeks review of a February 9, 2015, decision

12   of the BIA, affirming a May 7, 2013, decision of an Immigration

13   Judge (“IJ”) denying Chen’s application for asylum, withholding

14   of removal, and relief under the Convention Against Torture

15   (“CAT”).   In re Yong Chen, No. A200 933 596 (B.I.A. Feb. 9,

16   2015), aff’g No. A200 933 596 (Immig. Ct. N.Y. City May 7, 2013).

17   We assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19        Under the circumstances of this case, we review both the

20   IJ’s and BIA’s decisions.   Yun-Zui Guan v. Gonzales, 432 F.3d

21   391, 394 (2d Cir. 2005).    The applicable standards of review

22   are well established.   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

23   v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

                                     2
1      I.     CAT Relief

2           Initially, we note that we lack jurisdiction to consider

3    Chen’s challenges to the denial of CAT relief: Chen did not

4    specifically contest the denial of CAT relief before the BIA,

5    and the BIA did not excuse his failure to exhaust.             See Karaj

6    v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006); Xian Tuan Ye v.

7    Dep’t of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir. 2006).

8    We therefore dismiss the petition for lack of jurisdiction as

9    it relates to the denial of CAT relief.

10     II. Asylum & Withholding of Removal

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

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

13   circumstances,”      base   a    credibility    finding   on   an   asylum

14   applicant’s     “demeanor,       candor,   or    responsiveness,”     the

15   plausibility of his account, and inconsistencies in his or his

16   witness’s statements, “without regard to whether” they go “to

17   the     heart   of    the       applicant’s     claim.”        8    U.S.C.

18   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 n.2.                “We

19   defer . . . to an IJ’s credibility determination unless, from

20   the totality of the circumstances, it is plain that no

21   reasonable fact-finder could make such an adverse credibility
                                          3
1    ruling.”   Xiu Xia Lin, 534 F.3d at 167.        As discussed below,

2    substantial     evidence   supports    the    adverse    credibility

3    determination.

4        The adverse credibility determination was properly based

5    on the implausibility of Chen’s account concerning his first

6    attempt to travel to the United States.       Chen also omitted this

7    trip from his original application.            “[I]n assessing the

8    credibility of an asylum applicant’s testimony, an IJ is

9    entitled   to   consider   whether    the    applicant’s   story   is

10   inherently implausible.”    Wensheng Yan v. Mukasey, 509 F.3d 63,

11   66 (2d Cir. 2007).     Such a finding cannot be based on “bald

12   speculation or caprice.”    Zhou Yun Zhang v. INS, 386 F.3d 66,

13   74 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin

14   v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc).

15   But one that is based on “speculation that inheres in inference

16   is not ‘bald’ if the inference is made available to the

17   factfinder by record facts, or even a single fact, viewed in

18   the light of common sense and ordinary experience.”         Siewe v.

19   Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007).          Here, common

20   sense supports the IJ’s inference: it strains credulity that

21   Chen would leave China for a six-week period quite soon after
                                     4
1    he began attending house church services, yet never indicate

2    that he left because he feared persecution or wanted to practice

3    Christianity more freely in the United States.    It also strains

4    credulity that Chen would omit this trip from his original

5    application’s description of his practice of Christianity in

6    China, given that he accompanied a fellow underground church

7    member, and the trip falls squarely within the timeline of

8    relevant events (i.e., one month after he joined the house

9    church and two months before his arrest at the house church

10   gathering).

11       The   agency   also    reasonably   rested   its   credibility

12   determination on the inconsistency concerning who introduced

13   Chen to Christianity.     Both Chen’s application and his father’s

14   letter asserted that Ye Dahaun, Chen’s coworker, introduced

15   Chen to Christianity.     Chen testified, however, that another

16   co-worker, Ye Qiang, also introduced him to Christianity.    When

17   asked why neither his application nor his father’s letter

18   mentioned Ye Qiang, Chen responded that Ye Qiang had passed away

19   and that he just did not want to mention him.      The agency did

20   not err in rejecting this explanation.    See Majidi v. Gonzales,

21   430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner ‘must do more than
                                      5
1    offer a “plausible” explanation for his inconsistent statements

2    to secure relief; “he must demonstrate that a reasonable

3    fact-finder would be compelled to credit his testimony.” ’ ”

4    (quoting Zhou Yun Zhang, 386 F.3d at 76)).

5        The agency also reasonably relied on the inconsistency

6    between Chen’s testimony and evidence concerning Chen’s church

7    attendance in the United States.             Chen testified that he

8    attended church services every Sunday.             To corroborate his

9    church attendance, Chen submitted two letters from his second

10   U.S. church.    The first letter stated that Chen attended Sunday

11   Service regularly from September 2010 to January 2011.              The

12   second letter, however, stated that Chen attended Sunday

13   Service occasionally from January 2011 to February 2013.            When

14   confronted with this decrease in attendance, Chen explained

15   that although he attended church every Sunday, he would

16   occasionally arrive late, and was therefore not processed in

17   the system.     The IJ reasonably rejected this explanation as

18   unconvincing,    and   found   it       suspect   that   Chen’s   church

19   attendance appeared more devoted at the beginning of the asylum

20   process.


                                         6
1        Having   questioned    Chen’s      credibility,    the   agency

2    reasonably relied on his failure to corroborate.      See Biao Yang

3    v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (observing that

4    an applicant’s failure to corroborate testimony may bear on

5    credibility, either because the absence of particular evidence

6    is viewed as suspicious, or because the absence of corroboration

7    in general makes an applicant unable to rehabilitate testimony

8    already called into question).       The agency correctly observed

9    that Chen had not submitted any documentary evidence to

10   corroborate his arrest and detention in China.        Although Chen

11   testified that his father received a receipt for paying the

12   10,000 RMB fine, but that he just somehow lost it, the IJ

13   reasonably found implausible that his father would have lost

14   that receipt but managed to retain and send to Chen far less

15   relevant documentary evidence.       See 8 U.S.C. § 1252(b)(4)(D);

16   Kyaw Zwar Tun v. U.S. Immigration & Naturalization Serv., 445

17   F.3d 554, 563 (2d Cir. 2006).    Chen also submitted no evidence

18   to corroborate his church attendance in the United States for

19   the first six months after his arrival and could not recall the

20   name of the pastor of his first United States church.


                                      7
1        Given the inconsistencies identified, as well as Chen’s

2    failure to corroborate, it cannot be said “that no reasonable

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

4    Xiu Xia Lin, 534 F.3d at 167.       Because claims for asylum and

5    withholding of removal were based on the same factual predicate,

6    the adverse credibility determination is dispositive of both

7    claims.   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

8    We therefore deny Chen’s petition as it relates to the denials

9    of asylum and withholding of removal.

10       For the foregoing reasons, the petition for review is

11   DENIED IN PART and DISMISSED IN PART.     As we have completed our

12   review, any stay of removal that the Court previously granted

13   in this petition is VACATED, and any pending motion for a stay

14   of removal in this petition is DISMISSED as moot.     Any pending

15   request for oral argument in this petition is DENIED in

16   accordance with Federal Rule of Appellate Procedure 34(a)(2),

17   and Second Circuit Local Rule 34.1(b).

18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe, Clerk




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