         10-4671                                                                       BIA
         Chen v. Holder                                                            Hom, IJ
                                                                               A088 344 429



                           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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 11th day of September, two thousand twelve.
 5
 6
 7       PRESENT:
 8                JOSEPH M. McLAUGHLIN,
 9                DEBRA ANN LIVINGSTON,
10                RAYMOND J. LOHIER, JR.,
11                     Circuit Judges.
12       _____________________________________
13
14       JUN MOU CHEN, AKA JUNMOU CHEN,
15                Petitioner,
16
17                        v.                                    10-4671
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Pro Se.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Thomas B. Fatouros, Senior
28                                     Litigation Counsel; Annette M.
29                                     Wietecha, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, Washington, D.C.
 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       Jun Mou Chen, a native and citizen of the People’s

 6   Republic of China, seeks review of a November 5, 2010,

 7   decision of the BIA affirming the December 1, 2008, decision

 8   of Immigration Judge (“IJ”) Sandy K. Hom, which denied his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Jun Mou

11   Chen, No. A088 344 429 (B.I.A. Nov. 5, 2010), aff’g No. A088

12   344 429 (Immig. Ct. N.Y. City Dec. 1, 2008).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA.    See Yan Chen

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

18   applicable standards of review are well-established.     See 8

19   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

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

21       For asylum applications governed by the amendments made

22   to the Immigration and Nationality Act by the REAL ID Act of

23   2005, the agency may, considering the totality of the

                                     2
 1   circumstances, base a credibility finding on an asylum

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

 3   plausibility of his account, and inconsistencies in his

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

 5   of the applicant’s claim.”   See 8 U.S.C.

 6   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 7   167 (2d Cir. 2008).   We will “defer therefore to an IJ’s

 8   credibility determination unless, from the totality of the

 9   circumstances, it is plain that no reasonable fact-finder

10   could make” such a ruling.   Xiu Xia Lin, 534 F.3d at 167.

11   In this case, the agency reasonably based its adverse

12   credibility determination on the internal inconsistencies in

13   Chen’s testimony, and between his testimony and his asylum

14   application, as well as his demeanor.

15       As the agency noted, there were discrepancies between

16   Chen’s testimony and his asylum application regarding his

17   altercation with the cadres, and whether a particular

18   officer fell down or was pushed by Chen.    The agency

19   properly relied on the cumulative effect of these

20   inconsistencies to support the adverse credibility finding.

21   See 8 U.S.C. § 1158(b)(1)(B)(iii) (an IJ may base a

22   credibility determination on “the totality of the


                                   3
 1   circumstances, and all relevant factors”).   The adverse

 2   credibility determination is further supported by the IJ’s

 3   demeanor finding. In finding Chen not credible, the IJ

 4   reasonably relied in part on his demeanor, noting his long

 5   pauses before answering certain questions.   Because the IJ

 6   was in the best position to observe Chen’s manner while

 7   testifying, we afford this finding particular deference.

 8   See Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.

 9   2004), overruled on other grounds by Shi Liang Lin v. U.S.

10   Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).

11       Therefore, in this case, the totality of the

12   circumstances support the agency’s adverse credibility

13   determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

14   Lin, 534 F.3d at 167.   Because the adverse credibility

15   determination is dispositive of Chen’s asylum claim, we do

16   not reach his argument regarding resistance to a coercive

17   population control program.   Furthermore, because the only

18   evidence of a threat to Chen’s life or freedom depended upon

19   his credibility, the adverse credibility determination in

20   this case necessarily precludes success on his claims for

21   withholding of removal and CAT relief.   See Paul v.

22



                                   4
 1   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

 2   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

 7   this petition is DISMISSED as moot. Any pending request for

 8   oral argument in this petition is DENIED in accordance with

 9   Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14
15
16




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