    14-1111
    Chen v. Lynch
                                                                                       BIA
                                                                                   Segal, IJ
                                                                               A201 139 864
                         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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    4th day of December, two thousand fifteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             JON O. NEWMAN,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    RU CHEN,
                    Petitioner,

                    v.                                               14-1111
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Dehai Zhang, New York, NY.
FOR RESPONDENT:            Joyce R. Branda, Acting Assistant
                           Attorney General; Cindy S. Ferrier,
                           Assistant Director; Kimberly A.
                           Burdge, Trial Attorney, Office of
                           Immigration Litigation, Civil
                           Division, United States Department
                           of Justice, Washington, D.C.


    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Ru Chen, a native and citizen of China, seeks

review of a March 27, 2014, decision of the BIA affirming an

August 28, 2012, decision of an Immigration Judge (“IJ”) denying

Chen’s application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”).   In re Ru

Chen, No. A201 139 864 (B.I.A. Mar. 27, 2014), aff’g No. A201

139 864 (Immig. Ct. N.Y.C. Aug. 28, 2012).       We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

    Under the circumstances of this case, we have reviewed “the

decision of the IJ as supplemented by the BIA.”     Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable
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standards of review are well established.               See 8 U.S.C.

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

(2d Cir. 2008)(per curiam).

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

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

circumstances,”     base   a   credibility    finding   on   an   asylum

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

plausibility   of   her    account,    and   inconsistencies      in   her

statements, “without regard to whether” they go “to the heart

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

“We defer . . . to an IJ’s credibility determination unless,

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

reasonable fact-finder could make such an adverse credibility

ruling.”   Xiu Xia Lin, 534 F.3d at 167.        Substantial evidence

supports the IJ’s finding that Chen was not credible.

    The IJ’s credibility determination was properly based on

the inconsistencies in Chen’s written application and testimony

regarding when she wrote and published articles for the

Democracy Party of China (”CDP”).            Chen testified that she

wrote five articles for the CDP: four of them were written

                                   3
between May 4, 2011 and April 1, 2012, and no date was given

for the fifth.   But her application, which listed her articles

as a reason for her fear of persecution in China, was filed in

April 2011, before any of the articles were published.     The IJ

gave Chen two opportunities to explain this discrepancy.    Chen

gave varied responses, including that: she was nervous; a May

2011 date was a mistake by the people who posted the article

online; she wrote her first article in April 2011 and did not

know when it was published; the website on which some of the

articles were published had been hacked and thus the articles’

publication dates were not verifiable; and the articles were

posted by volunteers, so the time it took for articles to be

published varied.   The agency was not required to credit these

explanations because the record makes it plausible that Chen

was simply suggesting various possible explanations, as opposed

to stating the actual reason for the discrepancy.    See Majidi

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

Chen’s application stated that her articles were “published,”

not that publication was pending or forthcoming.   As such, even




                               4
if an article had been written but not published in April 2011,

it would do little, if anything, to resolve the discrepancy.

    Nor did Chen establish that the IJ should have done more

to develop the record.    The two cases on which she relies are

not relevant here.   First, Jin Shui Qiu v. Ashcroft, 329 F.3d

140, 156 (2d Cir. 2003), overruled on other grounds by Shi Liang

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

merely questions whether an IJ has a duty to assist counseled

applicants (like Chen) to develop their cases.   The second, Zhi

Wei Pang v. Bureau of Citizenship and Immigration Services, 448

F.3d 102, 111 (2d Cir. 2006), held that an IJ had not fulfilled

this duty where the adverse credibility finding was based on

speculative discrepancies that the IJ could have resolved by

requesting explanation.      Here, the discrepancies are not

speculative.   Even if the CDP had trouble publishing Chen’s

first article, her application alleged publication of multiple

articles, and yet the dates she gave at her hearing post-dated

her application, thereby undermining the basis of her fear of

persecution.




                               5
    Chen also appears to argue that the IJ violated her duty

to develop the record in rejecting Chen’s claim that a

photograph in one of the articles was sufficiently clear for

a viewer to identify Chen.     Chen alleged that the Government

had a clearer copy, but did not present it to the IJ.        Chen,

however, does not identify evidence of a clearer copy or

evidence that the IJ knew of such a copy.       And in any event,

the IJ’s credibility determination was not based on the clarity

of the photograph.

    The “totality of the circumstances” supports the IJ’s

decision because it cannot be said that “no reasonable fact

finder could make such an adverse credibility ruling.”      Xiu Xia

Lin, 534 F.3d at 167.    The discrepancies relate to the sole

basis for Chen’s fear of future persecution, her contention that

she has engaged in pro-democracy activities in the United States

that will put her at risk of persecution for her political

opinion.   See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d

289, 295 (2d Cir. 2006) (holding that an “inconsistency afforded

substantial   evidence   to   support   the   adverse   credibility

finding” where it was “‘a material inconsistency in an aspect

                                 6
of [petitioner’s] story that served as an example of the very

persecution from which he sought asylum’” (quoting Majidi, 430

F.3d at 80)).      Because all of Chen’s claims share the same

factual predicate, the adverse credibility determination is

dispositive   of   Chen’s   claims   for   asylum,   withholding   of

removal, and CAT relief.    Paul v. Gonzales, 444 F.3d 148, 156-57

(2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.

                               FOR THE COURT:
                               Catherine O=Hagan Wolfe, Clerk




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