         13-568
         Chen v. Holder
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A099 539 383
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 12th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       QUI TAI CHEN,
14                Petitioner,
15
16                        v.                                    13-568
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Robert J. Adinolfi, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; William C. Peachey,
28                                     Assistant Director; Brianne Whelan
29                                     Cohen, Acting Senior Litigation
30                                     Counsel; Matthew A. Spurlock, Trial
31                                     Attorney, Office of Immigration
32                                     Litigation, United States Department
33                                     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       Qui Tai Chen, a native and citizen of China, seeks

 6   review of a January 25, 2013, decision of the BIA affirming

 7   the August 31, 2011, decision an Immigration Judge (“IJ”),

 8   which denied his application for asylum, withholding of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Qui Tai Chen, No. A099 539 383 (B.I.A. Jan.

11   25, 2013), aff’g No. A099 539 383 (Immig. Ct. N.Y. City Aug.

12   31, 2011).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

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

16   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

17   2008).     The applicable standards of review are well

18   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

19   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20       For applications, like Chen’s, governed by the REAL ID

21   Act, the agency may, “[c]onsidering the totality of the

22   circumstances,” base a credibility finding on an asylum

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

                                     2
 1   plausibility of his account, and inconsistencies in his

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

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

 4   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.

 5   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).       We “defer to an

 6   IJ’s credibility determination unless, from the totality of

 7   the circumstances, it is plain that no reasonable fact-

 8   finder could make such an adverse credibility ruling.”         Xiu

 9   Xia Lin, 534 F.3d at 167.

10       Here, the agency’s credibility determination is

11   supported by the record.     First, the agency reasonably found

12   Chen not credible based on his failure to include the fine

13   he was allegedly required to pay to the family planning

14   authorities in his asylum application.        See 8 U.S.C.

15   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166 n.3

16   (stating that an “inconsistency and an omission are . . .

17   functionally equivalent”).    At the hearing, Chen testified

18   that, in 2005, the authorities fined him 20,000 renminbi

19   because of his wife’s two unauthorized pregnancies, he was

20   unable to pay the fine, and that the authorities went to his

21   house to collect the fine or arrest him if he could not pay,

22   but he had already left China.      He later stated that his


                                     3
 1   inability to pay the fine was the reason he left China.

 2   When he was asked why his asylum application did not mention

 3   either the fine or the threat of arrest, he averred that the

 4   assistant at the law office did not include them, although

 5   he had mentioned both.     The agency was not required to

 6   accept this explanation.     See Majidi v. Gonzales, 430 F.3d

 7   77, 80 (2d Cir. 2005) (A petitioner “must do more than offer

 8   a plausible explanation for his inconsistent statements to

 9   secure relief; he must demonstrate that a reasonable fact-

10   finder would be compelled to credit his testimony.”).

11   Moreover, this omission goes to the heart of Chen’s claim

12   that he suffered past persecution and it was proper grounds

13   for an adverse credibility finding.     See 8 U.S.C.

14   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166 n.3.

15       Second, the agency reasonably found that the lack of

16   corroboration further harmed Chen’s credibility, given that

17   the letters from his wife and in-laws also failed to state

18   that he had been fined, and the family planning notice he

19   submitted did not state the amount of the fine.        See Biao

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

21   inconsistency is obvious, the agency need not explicitly

22   notify the applicant.    See Xian Tuan Ye v. DHS, 446 F.3d


                                     4
 1   289, 295-96 (2d Cir. 2006).    However, Chen was put on

 2   notice, as he was asked for an explanation and for

 3   documentation; yet, he never offered an explanation for why

 4   his wife and in-laws failed to mention the fine.     The

 5   agency’s reliance on the lack of corroboration is

 6   reasonable.   The adverse credibility determination is

 7   dispositive of Chen’s claims for withholding of removal and

 8   CAT relief, as the claims share the same factual predicate.

 9   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

10       For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

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

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

15   oral argument in this petition is DENIED in accordance with

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

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk

20




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