         12-1616
         Chen v. Holder
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                               A093 043 011
                            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 6th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                        BARRINGTON D. PARKER,
 8                        GERARD E. LYNCH,
 9                        CHRISTOPHER F. DRONEY,
10                             Circuit Judges.
11
12       _____________________________________
13
14       ZHEN CHUN CHEN,
15                Petitioner,
16
17                        v.                                    12-1616
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Adedayo O. Idowu, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
27                                     Assistant Attorney General; Song
28                                     Park, Senior Litigation Counsel;
29                                     Joseph A. O'Connell, Attorney,
30                                     Office of Immigration Litigation,
 1
 2                           United States Department of
 3                           Justice, Washington, D.C.
 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 Zhen Chun Chen, a native and citizen of

10   China, seeks review of a March 23, 2012 order of the BIA,

11   affirming the May 26, 2010 decision of Immigration Judge

12   (“IJ”) Douglas B. Schoppert, who denied his application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).     In re Zhen Chun Chen,

15   No. A093 043 011 (B.I.A. Mar. 23, 2012), aff’g No. A093 043

16   011 (Immig. Ct. New York City May 26, 2010).    We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       Under the circumstances of this case, we review the

20   decisions of both the IJ and the BIA.     See Yun-Zui Guan v.

21   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

22   The applicable standards of review are well-established.

23   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

24   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

25


                                  2
 1       For applications such as Chen’s, which are governed by

 2   the REAL ID Act, the agency may base a credibility finding

 3   on an applicant’s demeanor, the plausibility of his account,

 4   and inconsistencies in his statements, without regard to

 5   whether they go “to the heart of the applicant’s claim.”

 6   8 U.S.C. § 1158(b)(1)(B)(iii).      We “defer . . . to an IJ’s

 7   credibility determination unless, from the totality of the

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

 9   could make such an adverse credibility ruling.”       Xiu Xia

10   Lin, 534 F.3d at 167.

11       Contrary to Chen’s assertions, the agency reasonably

12   found that he was not credible on the basis of testimonial

13   inconsistencies concerning: (1) the type of church he

14   attended in China; (2) when he was persecuted; and (3) the

15   length of his detention.   See 8 U.S.C. § 1158(b)(1)(B)(iii);

16   Xiu Xia Lin, 534 F.3d at 167.       Although Chen argues that

17   these inconsistencies were too minor to support an adverse

18   credibility determination, “an IJ may rely on any

19   inconsistency or omission in making an adverse credibility

20   determination as long as the ‘totality of the circumstances’

21   establishes that an asylum applicant is not credible.”          See

22   Xiu Xia Lin, 534 F.3d at 167 (emphasis in original).

23   Moreover, because Chen alleged that he suffered a single


                                     3
 1   incident of persecution based on his membership in an

 2   underground Christian church, the IJ correctly noted that

 3   his testimonial inconsistencies regarding whether he

 4   attended an underground church, when he suffered

 5   persecution, and the duration of the detention under which

 6   his persecution occurred went directly to the heart of his

 7   claim.   See Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d

 8   Cir. 2003), overruled by Xiu Xia Lin, 534 F.3d 162.

 9       Chen’s contention that the IJ failed to identify the

10   testimonial inconsistencies at his hearing or request an

11   explanation is misplaced.   While it is true that an IJ may

12   not rest an adverse credibility finding on a non-dramatic

13   discrepancy without first putting a petitioner on notice and

14   offering an opportunity to explain, the agency need not give

15   such notice and opportunity where, as here, it relied on

16   dramatic discrepancies that went to the very heart of an

17   applicant’s claim.    See Ming Shi Xue v. BIA, 439 F.3d 111,

18   125 (2d Cir. 2006).   In any event, Chen was not denied an

19   opportunity to explain his testimonial inconsistencies

20   because his attorney submitted a written closing statement

21   indicating that they were the result of interpretation

22   problems and Chen’s poor education.   However, the IJ did not

23   err in failing to credit these explanations, which were not


                                    4
 1   compelling in light of Chen’s testimony that Mandarin was

 2   his best dialect and he had no problems understanding the

 3   interpreter.   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

 4   Cir. 2005) (holding that the agency need not credit an

 5   applicant’s explanations for inconsistent testimony unless

 6   those explanations would compel a reasonable fact-finder to

 7   do so).

 8       Because we find the agency’s adverse credibility

 9   determination supported by substantial evidence on the basis

10   of Chen’s testimonial inconsistencies, we decline to reach

11   the IJ’s demeanor finding.   See INS v. Bagamasbad, 429 U.S.

12   24, 25 (1976) (“As a general rule courts and agencies are

13   not required to make findings on issues the decision of

14   which is unnecessary to the results they reach.”); see also

15   Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008)

16   (finding that remand is futile where the Court can

17   confidently “predict that the agency would reach the same

18   decision absent the errors that were made” (internal

19   quotation marks omitted)).

20       Having reasonably found that Chen failed to establish

21   his eligibility for asylum on credibility grounds, the

22   agency did not err in denying withholding of removal, as

23   both claims shared the same factual predicate.   See Paul v.


                                   5
 1   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).   The agency also

 2   did not err in finding that Chen failed to establish his

 3   entitlement to CAT relief in the absence of credible

 4   testimony, because he failed to present any documentary

 5   evidence regarding the torture of Christians in China, a

 6   dispositive finding that Chen has failed to contest.   See In

 7   re M-B-A-, 23 I. & N. Dec. 474, 479-80 (B.I.A. 2002) (noting

 8   that a claim “based on a chain of assumptions and a fear of

 9   what might happen” is insufficient to demonstrate

10   eligibility for relief under the CAT); see also Yueqing

11   Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

12   2005) (providing that issues not argued in briefs are deemed

13   abandoned).

14       For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, the pending motion

16   for a stay of removal in this petition is DENIED as moot.

17

18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21




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