         13-2608
         Chen v. Lynch
                                                                                       BIA
                                                                                    Burr, IJ
                                                                               A205 047 821


                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of December, two thousand fifteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                SUSAN L. CARNEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       Jinsheng Chen,
14                Petitioner,
15
16                       v.                                     13-2608
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Lewis G. Hu, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Terri J. Scadron, Assistant
27                                     Director; Kathryn L. Deangelis,
28                                     Trial Attorney, Office of
 1                             Immigration Litigation, United
 2                             States Department of Justice,
 3                             Washington, D.C.
 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       Jinsheng Chen, a native and citizen of the People’s

10   Republic of China, seeks review of a June 17, 2013 decision

11   of the BIA affirming the October 1, 2012 decision of

12   Immigration Judge (“IJ”) Sarah M. Burr, which denied his

13   application for asylum, withholding of removal, and relief

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

15   Jinsheng Chen, No. A205 047 821 (B.I.A. June 17, 2013),

16   aff’g No. A205 047 821 (Immig. Ct. N.Y. City Oct. 1, 2012).

17   We assume the parties’ familiarity with the underlying facts

18   and procedural history.

19        Under the circumstances of this case, we have reviewed

20   the IJ’s decision as modified by the BIA decision, i.e.,

21   minus the arguments for denying relief (Chen’s lack of

22   doctrinal knowledge) that were rejected by the BIA.      See Xue

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

24   Cir. 2005).   The applicable standards of review are well



                                     2
 1   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

 2   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 3       For asylum applications that like Chen’s, are governed

 4   by the REAL ID Act of 2005, the agency may, “[c]onsidering

 5   the totality of the circumstances,” base a credibility

 6   finding on an asylum applicant’s “demeanor, candor, or

 7   responsiveness,” the plausibility of his account, and

 8   inconsistencies in his statements, without regard to whether

 9   they go “to the heart of the applicant’s claim,” so long as

10   they reasonably support an inference that the applicant is

11   not credible.    8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia

12   Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).       We “defer

13   . . . to an IJ’s credibility determination unless, from the

14   totality of the circumstances, it is plain that no

15   reasonable fact-finder could make such an adverse

16   credibility ruling.”    Xiu Xia Lin, 534 F.3d at 167.     In this

17   case, the agency reasonably based its adverse credibility

18   determination on inconsistencies between Chen’s testimony

19   and that of his witness, and the lack of a plausible

20   explanation for those inconsistencies.

21       The IJ found that Chen failed to meet his burden of

22   proof for asylum because his account of his Falun Gong


                                    3
 1   activities was inconsistent with the testimony of his

 2   friend, Chen Long Dong (“the witness”).   Substantial

 3   evidence supports the IJ’s findings that Chen testified

 4   inconsistently with the witness with respect to where he and

 5   the witness first met, whether they arranged in advance to

 6   practice Falun Gong together, and how many Falun Gong

 7   positions Chen practices.

 8       While the inconsistency regarding where Chen and the

 9   witness first met is relatively minor, the agency was

10   nonetheless entitled to rely on the “cumulative effect” of

11   the inconsistencies.   See Tu Lin v. Gonzales, 446 F.3d 395,

12   402 (2d Cir. 2006) (emphasizing that “even where an IJ

13   relies on discrepancies or lacunae that, if taken

14   separately, concern matters collateral or ancillary to the

15   claim,. . . the cumulative effect may nevertheless be deemed

16   consequential by the fact-finder”(internal quotation marks

17   omitted)); see also Liang Chen v. U.S. Att'y Gen., 454 F.3d

18   103, 106-107 (2d Cir. 2006) (“[A]n IJ need not consider the

19   centrality vel non of each individual discrepancy or

20   omission” and can instead “rely upon the cumulative impact

21   of such inconsistencies,. . . and may conduct an overall

22   evaluation of testimony in light of its rationality or


                                   4
 1   internal consistency and the manner in which it hangs

 2   together with other evidence.”(internal quotation marks

 3   omitted)). Furthermore, Chen had an opportunity to address

 4   the inconsistencies, but Chen failed to address them.      See

 5   Ming Shi Xue v. BIA, 439 F.3d 111, 120-21 (2d Cir. 2006) (An

 6   IJ need only give an applicant a chance to reconcile

 7   inconsistences that are not self-evident; otherwise, it is

 8   the applicant’s “responsibility to proffer, with or without

 9   prompting, an explanation for what appears on its face to be

10   a clear contradiction.”).

11       The totality of the circumstances supports the agency’s

12   adverse credibility determination.   See 8 U.S.C.

13   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.      Because

14   the only evidence of a threat to Chen’s life or freedom

15   depended upon his credibility, the adverse credibility

16   finding necessarily precludes success on his claims for

17   asylum, withholding of removal, and CAT relief.     See Paul v.

18   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

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




                                   5
1   is VACATED, and any pending motion for a stay of removal in

2   this petition is DISMISSED as moot.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6




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