     17-4083
     Chen v. Barr
                                                                                   BIA
                                                                              Nelson, IJ
                                                                           A205 075 532
                         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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 8th day of October, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RAYMOND J. LOHIER, JR.,
10            RICHARD J. SULLIVAN,
11                 Circuit Judges.
12   _____________________________________
13
14   XUE KONG CHEN,
15            Petitioner,
16
17                  v.                                           17-4083
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Nataliya I. Gavlin, Gavlin &
25                                    Associates, P.C., New York, NY.
26
27   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
28                                    Attorney General; Terri J.
29                                    Scadron, Assistant Director, Lisa
30                                    M. Damiano, Trial Attorney, Office
1                               of Immigration Litigation, United
2                               States Department of Justice,
3                               Washington, DC.
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        Petitioner Xue Kong Chen, a native and citizen of the

10   People’s Republic of China, seeks review of a December 4,

11   2017, decision of the BIA affirming a March 8, 2017, decision

12   of an Immigration Judge (“IJ”) denying asylum, withholding of

13   removal, and relief under the Convention Against Torture

14   (“CAT”).    In re Xue Kong Chen, No. A205 075 532 (B.I.A. Dec.

15   4, 2017), aff’g No. A205 075 532 (Immig. Ct. N.Y. City Mar.

16   8, 2017).      We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   the IJ’s decision as supplemented and modified by the BIA.

20   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

21   (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

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

23   established.    See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

24   Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse


                                    2
1    credibility determination for substantial evidence).

2         “Considering the totality of the circumstances, and all

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

4    determination on the demeanor, candor, or responsiveness of

5    the applicant . . . , the inherent plausibility of the

6    applicant’s     .   .   .    account,       the   consistency   between    the

7    applicant’s . . . written and oral statements . . . , the

8    internal consistency of each such statement, the consistency

9    of such statements with other evidence of record . . . without

10   regard to whether an inconsistency, inaccuracy, or falsehood

11   goes to the heart of the applicant’s claim, or any other

12   relevant factor.”       8 U.S.C. § 1158(b)(1)(B)(iii).              “We defer

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

14   totality of the circumstances, it is plain that no reasonable

15   fact-finder could make such an adverse credibility ruling.”

16   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);

17   accord Hong Fei Gao, 891 F.3d at 76.                  Substantial evidence

18   supports      the   agency’s     determination        that   Chen    was   not

19   credible as to his claim that police officers detained and

20   beat him on account of his practice of Christianity or that

21   he   feared    future       persecution      based   on   his   practice   of

22   Christianity in the United States.


                                             3
 1        First, the IJ found that Chen’s demeanor detracted from

 2   his credibility because he appeared nervous and paused in

 3   answering    questions.            An     IJ    may     base     a       credibility

 4   determination on the “demeanor, candor, or responsiveness” of

 5   the applicant.        8 U.S.C. § 1158(b)(1)(B)(iii).                     We defer to

 6   the IJ’s findings based on her observation of Chen’s demeanor,

 7   see Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d

 8   Cir. 2005), particularly where, as discussed below, there are

 9   also inconsistencies in Chen’s statements, see Li Hua Lin v.

10   U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We

11   can be still more confident in our review of observations

12   about   an   applicant’s        demeanor       where,     as   here,       they   are

13   supported by specific examples of inconsistent testimony.”).

14        Second,      the     agency        reasonably        relied         on   Chen’s

15   inconsistent statements.              See 8 U.S.C. § 1158(b)(1)(B)(iii).

16   When Chen was asked whether he received any instructions on

17   release from detention, he twice equivocated before stating

18   that he had to sign a letter that he would not attend the

19   unregistered church.            Chen’s explanation that he stuttered

20   and misspoke does not compel a different interpretation.                          See

21   Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (“So long

22   as   there   is   a     basis    in     the    evidence    for       a    challenged


                                              4
1    inference, we do not question whether a different inference

2    was available or more likely.”).    In addition, Chen initially

3    misstated his witness’s name and then hesitated when asked to

4    confirm the name.   See Xiu Xia Lin, 534 F.3d at 163 (“[A]n

5    IJ may rely on any inconsistency . . . in making an adverse

6    credibility determination as long as the ‘totality of the

7    circumstances’ establishes that an asylum applicant is not

8    credible.” (emphasis in original)).

9        Third, the IJ reasonably found, in light of Chen’s

10   testimony, that his medical evidence was implausible.            Chen

11   testified that he was beaten by the police the day after he

12   was detained, and that he was only beaten once.           He stated

13   that the beating left “[s]ome areas . . . swollen,” and

14   “[s]ome areas became bruises.”     Doc. No. 12 at 97.         However,

15   Chen did not receive medical care until four months later, so

16   the IJ reasonably questioned why he would still have bruises

17   given the lack of any testimony about the severity of his

18   injuries.     See   Siewe,   480   F.3d     at   169     (requiring

19   plausibility findings to be “tethered to the evidentiary

20   record”).

21       Lastly,   the   IJ   reasonably       concluded    that     Chen’s

22   corroborating documents — letters from family and a friend in


                                    5
1    China — did not rehabilitate his testimony.             See Biao Yang

2    v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

3    failure to corroborate his or her testimony may bear on

4    credibility, because the absence of corroboration in general

5    makes an applicant unable to rehabilitate testimony that has

6    already been called into question.”).       Chen did not challenge

7    this finding before the BIA and does not do so in his brief

8    to this Court.    See Yueqing Zhang v. Gonzales, 426 F.3d 540,

9    545 n.7 (2d Cir. 2005) (providing that issues not raised in

10   an opening brief are waived); see also Lin Zhong v. U.S. Dep’t

11   of Justice, 480 F.3d 104, 119–22 (2d Cir. 2007) (requiring

12   petitioner to exhaust all issues before the BIA).

13         Given the IJ’s observations regarding Chen’s demeanor,

14   the    inconsistencies     within     Chen’s      statements,       the

15   questionable    medical   records,   and   the   lack    of   reliable

16   corroboration, we conclude that the IJ’s adverse credibility

17   determination is supported by substantial evidence.             See 8

18   U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

19   The   adverse   credibility   determination      is   dispositive   of

20   asylum, withholding of removal, and CAT relief because all of

21   Chen’s claims relied on the same factual predicate.           See Paul

22   v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).


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

2   DENIED.   All pending motions and applications are DENIED and

3   stays VACATED.

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




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