    14-4333
    Chen v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 337 091

                         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
    15th day of December, two thousand fifteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             PETER W. HALL,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    MEI CHEN,
                    Petitioner,

                    v.                                               14-4333
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Jan Potempkin, New York, NY.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Eric W.
                                         Marsteller, Senior Litigation
                           Counsel; Joseph D. Hardy, Trial
                           Attorney, Office of Immigration
                           Litigation, 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 Mei Chen, a native and citizen of China, seeks

review of an October 29, 2014, decision of the BIA affirming

a June 11, 2013, 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 Mei

Chen, No. A205 337 091 (B.I.A. Oct. 29, 2014), aff’g No. A205

337 091 (Immig. Ct. N.Y. City June 11, 2013).      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

IJ’s decision.   See Mei Chai Ye v. U.S. Dep’t of Justice, 489

F.3d 517, 523 (2d Cir. 2007).       The applicable standards of

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

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
                               2
    For asylum applications such as Chen’s, governed by the

REAL ID Act of 2005, the agency may, “considering 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 and evidence, without regard to whether they go “to

the heart of the applicant’s claim,” so long as they reasonably

support an inference that the applicant is not credible.             8

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

F.3d 162, 167 (2d Cir. 2008) (per curiam).        An omission in an

applicant’s testimony or supporting documents is “functionally

equivalent” to an inconsistency and “can serve as a proper basis

for an adverse credibility determination.”         Xiu Xia Lin, 534

F.3d at 166 n.3.    “We defer therefore 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.”     Id. at 167.

    Chen applied for asylum based on a claim that she was

subject to a forced abortion.        The agency found that Chen was

not credible because she did not mention this abortion during

her credible fear interview, despite maintaining that she was
                                 3
forced to use an intrauterine device (“IUD”) and threatened with

sterilization, and she was inconsistent regarding when she was

forced to use an IUD.           This omission and inconsistency

constitute     substantial    evidence         supporting   the   agency’s

adverse credibility determination.

    During her credible fear interview, Chen stated that

authorities in China “wanted to catch [her] so they could insert

an IUD and sterilize [her].”              She did not reference any

abortion.    Further, she explained that authorities asked her

in December 2009 to have an IUD inserted.                   In her asylum

application, however, Chen stated that she was required to use

an IUD beginning in August 1995, had it removed in January 2011,

and was forced to terminate a pregnancy in October 2011.               When

asked about these discrepancies, Chen explained that she was

“very nervous” during the credible fear interview.                Given the

central importance of this omission in her testimony at the

credible fear interview, the IJ did not err in declining to

credit   her    explanation    for       the    omission.      Under    the

circumstances, nothing in her explanation would compel a

reasonable fact-finder to do so.          See Majidi v. Gonzales, 430

F.3d 77, 80-81 (2d Cir. 2005).       These inconsistencies regarding
                                     4
the main incident of past harm, the abortion, and the related

discrepancies regarding the IUD are sufficient grounds for an

adverse credibility determination.          See Xian Tuan Ye v. Dep’t

of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (per curiam).

    Furthermore, the agency did not err in relying on the

credible fear interview to find Chen not credible.           The record

bears sufficient indicia of the interview’s reliability: it

provides a verbatim account of Chen’s statements, including her

answers to questions regarding why she feared returning to

China; the questions regarding her fear of return were clearly

designed to elicit the details of an asylum claim; and there

is no indication that Chen was not forthcoming given her

statements about an IUD and threatened sterilization.             See Ming

Zhang   v.   Holder,   585    F.3d   715,   723-25   (2d   Cir.    2009);

Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir. 2004)

(discussing indicia of reliability in border interviews).

    Finally, the agency reasonably gave limited weight to the

documentary evidence.        The unsworn letters from Chen’s husband

and friend were from interested authors not subject to cross

examination.    See Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209,

215 (B.I.A. 2010), overruled on other grounds by Hui Lin Huang
                                     5
v. Holder, 677 F.3d 130, 137-38 (2d Cir. 2012); see also Xiao

Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

2006) (noting that the weight afforded to evidence lies largely

within the discretion of the agency).

    The agency also reasonably gave limited weight to the

abortion certificate Chen provided.     Although the agency may

not reject an official record solely because it is not

authenticated pursuant to regulation, see Cao He Lin v.

Gonzales, 428 F.3d 391, 404–05 (2d Cir. 2005), Chen did not

demonstrate the authenticity of the certificate through any

other alternative objective means and gave no explanation as

to when she received the certificate or who gave it to her.

Here, Chen argues that authentication is not necessary because

the certificate is a medical record, not an official government

record.      Chen’s asylum claim is, however, based on the

proposition that government officials forced her to terminate

her pregnancy: a medical record stating that Chen had an

abortion, without addressing whether the abortion was voluntary

or involuntary, does not rehabilitate her otherwise incredible

testimony.    See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d

Cir. 2007).
                                6
    The inconsistencies in the record go to the heart of Chen’s

claim   and    provide    substantial        evidence   for    the   agency’s

credibility finding.        Because the only evidence of a threat to

Chen’s life or freedom depended upon her credibility, the

agency’s      finding    that   she    was    not   credible    necessarily

precludes success on her 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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