     17-2680
     Chen v. Barr
                                                                                 BIA
                                                                             Leeds, IJ
                                                                         A200 181 195
                         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 10th day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            JOSÉ A. CABRANES,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAOFENG CHEN,
14            Petitioner,
15
16                  v.                                         17-2680
17                                                             NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   ____________________________________
22
23   FOR PETITIONER:                 Gary J. Yerman, New York, NY.
24
25   FOR RESPONDENT:                 Chad A. Readler, Acting Assistant
26                                   Attorney General, Civil Division,
27                                   United States Department of
28                                   Justice, Washington, DC; Linda S.
29                                   Wernery, Assistant Director,
30                                   William C. Minick, Trial Attorney,
31                                   Office of Immigration Litigation,
32                                   United States Department of
33                                   Justice, 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 Xiaofeng Chen, a native and citizen of the

 6   People’s Republic of China, seeks review of an August 3,

 7   2017    decision     of    the    BIA   affirming    a   February   13,     2017

 8   decision    of      an    Immigration     Judge    (“IJ”)   denying    Chen’s

 9   application for asylum, withholding of removal, and relief

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

11   Xiaofeng Chen, No. A 200 181 195 (B.I.A. Aug. 3, 2017),

12   aff’g No. A 200 181 195 (Immig. Ct. N.Y. City Feb. 13,

13   2017).         We   assume       the    parties’    familiarity     with    the

14   underlying facts and procedural history in this case.

15          Under the circumstances of this case, we review the

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

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

18   standards of review are well established.                     See 8 U.S.C.

19   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

20   (2d Cir. 2018).

21
                                               2
 1       The governing REAL ID Act credibility standard provides

 2   as follows:

 3       Considering the totality of the circumstances, and
 4       all relevant factors, a trier of fact may base a
 5       credibility determination on the demeanor, candor,
 6       or responsiveness of the applicant or witness, . .
 7       . the consistency between the applicant’s or
 8       witness’s written and oral statements . . . , the
 9       internal consistency of each such statement, the
10       consistency of such statements with other evidence
11       of record . . . , and any inaccuracies or
12       falsehoods in such statements, . . . or any other
13       relevant factor.
14
15   8 U.S.C. § 1158(b)(1)(B)(iii).              “We defer . . . to an IJ’s

16   credibility determination unless . . . it is plain that no

17   reasonable    fact-finder          could         make     such     an     adverse

18   credibility ruling.”         Xiu Xia Lin v. Mukasey, 534 F.3d 162,

19   167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.

20   Substantial     evidence       supports           the     agency’s        adverse

21   credibility determination.

22       First,    Chen     has    waived       any    challenge       to     the   IJ’s

23   findings that (1) his testimony and medical records were

24   inconsistent,    and   (2)    his    uncle’s        letter     undermined      his

25   credibility     because      its    condition           cast     doubt    on   its

26   legitimacy.     See Yueqing Zhang v. Gonzales, 426 F.3d 540,

27   541 n.1, 545 n.7 (2d Cir. 2005).                        Even if not waived,
                                            3
 1   however, these findings provide substantial support for the

 2   adverse credibility determination.               Chen’s testimony and the

 3   hospital record were inconsistent regarding the number of

 4   medications he was prescribed.                  And the agency reasonably

 5   determined that a corroborating letter, purportedly mailed

 6   by Chen’s uncle in China to Chen’s attorney in the United

 7   States in an attached envelope, undermined his credibility

 8   because the original document had no creases or fold marks

 9   and   therefore   could     not   have      been      sent   in    the   attached

10   envelope.     See   8   U.S.C.     §       1158(b)(1)(B)(iii);           Siewe   v.

11   Gonzales, 480 F.3d 160, 169-70 (2d Cir. 2007) (upholding

12   IJ’s rejection of document as inauthentic when petitioner

13   claimed that he did not present original because it was

14   creased but photocopy did not show crease marks.

15         Second, the IJ’s demeanor finding bolsters the adverse

16   credibility       determination.                     See      8       U.S.C.      §

17   1158(b)(1)(B)(iii)      (allowing          IJ    to       consider     “demeanor,

18   candor, or responsiveness of the applicant”).                        We generally

19   “give    particular       deference”            to    adverse         credibility

20   determinations      “that    are       based         on    the     adjudicator’s

21   observation of the applicant’s demeanor.”                         Li Hua Lin v.
                                            4
 1   U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

 2   Moreover, the record reflects that Chen gave non-responsive

 3   answers to questions regarding his practice of Falun Gong in

 4   the United States and had to be asked multiple times whether

 5   he practiced Falun Gong alone or in a group.                 See Tu Lin v.

 6   Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (“Evasiveness is

 7   . . .     one of the many outward signs a fact-finder                      may

 8   consider in evaluating demeanor and in making an assessment

 9   of credibility.”).

10          Third,    the     IJ   also   reasonably    concluded     that     Chen

11   failed     to    rehabilitate        his   credibility    with     reliable

12   corroborating evidence.          See Biao Yang v. Gonzales, 496 F.3d

13   268,     273    (2d    Cir.    2007)   (“An    applicant’s      failure     to

14   corroborate his or her testimony may bear on credibility,

15   because the absence of corroboration in general makes an

16   applicant unable to rehabilitate testimony that has already

17   been    called    into    question.”).        As   previously    discussed,

18   Chen’s medical records were inconsistent with his testimony

19   and the letter from his uncle was not reliable evidence.

20   Furthermore, the IJ reasonably faulted Chen for providing

21   limited evidence that he continues to practice Falun Gong in
                                            5
 1   the United States, particularly as Chen gave non-responsive

 2   and conflicting answers when asked why he did not provide

 3   updated photographs or offer a witness.

 4         Finally, although the IJ misstated Chen’s testimony in

 5   concluding that he was inconsistent regarding his travel to

 6   the United States—the transcript reflects that Chen said he

 7   spent a few days, not two days, in both Mexico and Guatemala

 8   remand would be futile because we are confident that the

 9   agency would reach the same result absent the error.              See

10   Lianping Li v. Lynch, 839 F.3d 144, 149-50 (2d Cir. 2016).

11   Given    the    demeanor    and   corroboration     findings,     the

12   discrepancies between Chen’s testimony and medical records,

13   and the unreliable letter from his uncle, the totality of

14   the     circumstances      supports   the   adverse    credibility

15   determination.     See Xiu Xia Lin, 534 F.3d at 167.       Because

16   Chen’s claims were all based on the same factual predicate,

17   the   adverse   credibility    determination   is   dispositive    of

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

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

20

21
                                       6
1       For the foregoing reasons, the petition for review is

2   DENIED.    All   pending   motions   are   DENIED   and   stays   are

3   VACATED.

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




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