     17-430
     Chen v. Sessions
                                                                                   BIA
                                                                             Poczter, IJ
                                                                          A205 048 527
                             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
 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 24th day of September, two thousand eighteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PETER W. HALL,
10                 Circuit Judges.
11   _____________________________________
12
13   MEI HUI CHEN,
14            Petitioner,
15
16                      v.                                       17-430
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Gerald Karikari, New York, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General; Carl H.
27                                      McIntyre, Assistant Director;
28                                      Justin R. Markel, Senior
29                                      Litigation Counsel, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      Washington, DC.
1           UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5           Petitioner Mei Hui Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a January 19,

7    2017, decision of the BIA affirming a February 25, 2016,

8    decision      of   an    Immigration       Judge    (“IJ”)       denying    asylum,

9    withholding        of   removal,     and       relief    under   the   Convention

10   Against Torture (“CAT”).              In re Mei Hui Chen, No. A205 048

11   527 (B.I.A. Jan. 19, 2017), aff’g No. A205 048 527 (Immig.

12   Ct.    N.Y.   City      Feb.   25,   2016).         We    assume    the    parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15          Under the circumstances of this case, we have reviewed

16   both    the   IJ’s      and    the   BIA’s      opinions    “for    the    sake   of

17   completeness.”          Wangchuck v. Dep’t of Homeland Security, 448

18   F.3d 524, 528 (2d Cir. 2006).                   The applicable standards of

19   review are well established.                   See 8 U.S.C. § 1252(b)(4)(B);

20   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

21          “Considering the totality of the circumstances, and all

22   relevant factors, a trier of fact may base a credibility


                                                2
1    determination on the demeanor, candor, or responsiveness of

2    the applicant or witness, the inherent plausibility of the

3    applicant’s or witness’s account, the consistency between

4    the applicant’s or witness’s written and oral statements .

5    . . , and the internal consistency of each such statement .

6    . . without regard to whether an inconsistency, inaccuracy,

7    or falsehood goes to the heart of the applicant’s claim.”

8    8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

9    F.3d at 163-64.   Substantial evidence supports the agency’s

10   determination that Chen was not credible as to her claim

11   that family planning officials forced her to undergo

12   sterilization in 2002, that police detained and beat her in

13   2011 for attending an unregistered church in China, and

14   that she fears future religious persecution.

15       The agency reasonably relied in part on the demeanor

16   exhibited by Chen and her husband.   See 8 U.S.C.

17   § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81

18   n.1 (2d Cir. 2005) (recognizing that particular deference

19   is given to the trier of fact’s assessment of demeanor).

20   That finding is supported by the record, which reflects

21   that they were unresponsive, evasive, and hesitant on

22   cross-examination, even when answering relatively simple


                                   3
1    questions about their daily life including their

2    celebration of religious holidays, thus allowing the

3    inference that they sought time to formulate answers rather

4    than they testified from memory.

5           The   demeanor    finding     and   the    overall     credibility

6    determination are bolstered by record inconsistencies.                  See

7    Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

8    Cir. 2006).     The agency reasonably found that Chen’s and her

9    husband’s testimony was internally inconsistent as well as

10   inconsistent with each other’s testimony regarding when Chen

11   told him she had been sterilized, whether her husband was in

12   China when she was sterilized, when her husband left China

13   for the United States, whether she discussed Christianity

14   with her husband when she converted or (only years later when

15   she arrived in the United States), and whether she knew that

16   her    husband’s   asylum      application       had   been    denied   on

17   credibility    grounds.        See   8 U.S.C.    § 1158(b)(1)(B)(iii).

18   Neither Chen nor her husband provided compelling explanations

19   for these inconsistencies.           See Majidi, 430 F.3d at 80 (“A

20   petitioner must do more than offer a plausible explanation

21   for h[er] inconsistent statements to secure relief; [s]he

22   must    demonstrate     that   a   reasonable    fact-finder    would   be


                                          4
1    compelled to credit h[er] testimony.” (internal quotation

2    marks omitted)).

3           The agency also did not err in finding implausible Chen’s

4    and her husband’s testimony that he fled a house fire on the

5    evening of February 14, 2002, and departed China at 8:00 a.m.

6    the    following    morning   using   a   false   passport    with    his

7    photograph despite no prior plans to travel to the United

8    States.    See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Wensheng

9    Yan v. Mukasey, 509 F.3d 63, 66-68 (2d Cir. 2007) (recognizing

10   that    adverse    credibility   determination     may   be   based   on

11   inherent implausibility if the “finding is tethered to record

12   evidence” or based on common sense).

13          Having questioned Chen’s credibility, the agency

14   reasonably relied further on her failure to rehabilitate

15   her testimony with sufficient corroborating evidence.            “An

16   applicant’s failure to corroborate . . . her testimony may

17   bear on credibility, because the absence of corroboration

18   in general makes an applicant unable to rehabilitate

19   testimony that has already been called into question.”

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

21   The IJ reasonably declined to afford weight to unsworn

22   letters from Chen’s mother and friend in China.           See Y.C.


                                       5
1    v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to

2    agency’s decision to afford little weight to husband’s

3    letter because it was unsworn and from an interested

4    witness).   The remaining evidence is not probative as to

5    whether Chen’s tubal ligation was forced, as required to

6    establish persecution.       See 8 U.S.C. § 1101(a)(42).       The

7    agency was not compelled to conclude that an unsworn letter

8    that Chen attends church in the United States, pictures of

9    Chen in church, and a letter from a church member stating

10   that she has seen Chen in church were sufficient to

11   rehabilitate Chen’s claim that she is Christian.         See

12   8 U.S.C. § 1158(b)(1)(B)(iii); see also Biao Yang, 496 F.3d

13   at 273.

14       Given the demeanor, inconsistency, implausibility, and

15   corroboration   findings,     which   call   into   question   Chen’s

16   claims of past persecution, her practice of Christianity, and

17   her credibility as a whole, the agency’s adverse credibility

18   determination is supported by substantial evidence and was

19   dispositive   of   asylum,    withholding    of   removal,   and     CAT

20   relief.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

21   2006).

22


                                       6
1        Counsel for the Petitioner represents to this Court that

2    “[o]n November 17, 2014, the Board sustained Chen’s appeal,

3    holding   that      the   Immigration    Judge’s    finding    as    to   the

4    credibility of testimony was clearly erroneous.”                Brief for

5    Petitioner     at    5.     However,     in   its   November   17,     2014,

6    decision, the Board did not hold that the IJ’s finding as to

7    the credibility of testimony was clearly erroneous.                 Instead,

8    the Board stated, “[T]he respondent has presented evidence,

9    which was previously unavailable, and we are limited in our

10   fact-finding authority on appeal.               Consequently, we find

11   remand warranted for the Immigration Judge to address in the

12   first instance the respondent’s evidence on appeal and its

13   bearing   on     the      respondent’s    credibility.”         Certified

14   Administrative Record 243 (citations and footnote omitted).

15       Counsel is cautioned that any misrepresentation in future

16   submissions will incur the risk of sanctions.

17       For the foregoing reasons, the petition for review is

18   DENIED.   As we have completed our review, any stay of removal

19   that the Court previously granted in this petition is VACATED,

20   and any pending motion for a stay of removal in this petition

21   is DISMISSED as moot.        Any pending request for oral argument

22   in this petition is DENIED in accordance with Federal Rule of


                                         7
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe
5                              Clerk of Court




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