15-320
Chen v. Sessions
                                                                                    BIA
                                                                                Segal, IJ
                                                                            A200 174 033
                        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.

     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
5th day of April, two thousand seventeen.
PRESENT:
         JOHN M. WALKER, JR.,
         ROBERT D. SACK,
         REENA RAGGI,
              Circuit Judges.
_____________________________________

DING XUAN CHEN,
         Petitioner,
                   v.                                             15-320
                                                                  NAC
JEFFERSON B. SESSIONS, III, UNITED
STATES ATTORNEY GENERAL,
         Respondent.
_____________________________________
FOR PETITIONER:                     Lee Ratner, Law Offices of Michael
                                    Brown, New York, New York.
FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
                                    Assistant Attorney General; Shelley
                                    R. Goad, Assistant Director; Kristin
                                    Moresi, Trial Attorney, Office of
                                    Immigration    Litigation,    United
                                    States    Department   of   Justice,
                                    Washington, D.C.

                                          1
    UPON DUE CONSIDERATION of this petition for review of a Board

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

ADJUDGED, AND DECREED that the petition for review is DENIED.

    Petitioner Ding Xuan Chen, a native and citizen of the

People’s Republic of China, seeks review of a January 20, 2015

decision of the BIA, affirming an August 21, 2013 decision of

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

removal, and relief under the Convention Against Torture

(“CAT”). See In re Ding Xuan Chen, No. A200 174 033 (B.I.A. Jan.

20, 2015), aff’g No. A200 174 033 (Immig. Ct. N.Y.C. Aug. 21,

2013). We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed both

the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432

F.3d 391, 394 (2d Cir. 2005). The applicable standards of review

are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

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

    The   agency    may,   “[c]onsidering      the   totality     of   the

circumstances,”     base   a   credibility    finding   on   an   asylum

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

plausibility   of   his    account,    and   inconsistencies      in   his

statements and other record evidence “without regard to whether”


                                   2
those inconsistencies go “to the heart of the applicant’s claim.”

8 U.S.C. § 1158(b)(1)(B)(iii); accord Xiu Xia Lin v. Mukasey,

534 F.3d at 163-64. “We defer therefore to an IJ’s credibility

determination unless . . . it is plain that no reasonable

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

Xia Lin v. Mukasey, 534 F.3d at 167.       Substantial evidence

supports the agency’s determination that Chen was not credible.

     The IJ did not err in basing her credibility determination,

in part, on her observations of Chen’s demeanor. See Majidi v.

Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that

particular deference is given to trier of fact’s assessment of

demeanor); Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113

(2d Cir. 2005) (“We give particular deference to credibility

determinations that are based on the adjudicator’s observation

of the applicant’s demeanor . . . .”).          Chen was often

unresponsive and could not remember facts that he had recounted

in his asylum application, including whether authorities had

threatened sterilization. The IJ reasonably declined to credit

Chen’s excuse that he had a bad memory, given that his asylum

application included specific details. See Majidi v. Gonzales,

430 F.3d at 80 (“A petitioner must do more than offer a plausible

explanation for his inconsistent statements to secure relief;


                               3
he must demonstrate that a reasonable fact-finder would be

compelled to credit his testimony.” (emphasis in original)

(internal quotation marks omitted)).

    This   demeanor    finding,    and    the   adverse    credibility

determination as a whole, are further supported by record

inconsistencies. See Li Hua Lin v. U.S. Dep’t of Justice, 453

F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident

in our review of observations about an applicant’s demeanor

where, as here, they are supported by specific examples of

inconsistent testimony.”); Xiu Xia Lin v. Mukasey, 534 F.3d at

166-67. Chen testified inconsistently when questioned how his

wife became pregnant in 2010 despite being forced to use an IUD.

He testified both that the IUD fell out or was lost, and that

his wife looked for a private physician to remove the IUD. The

agency was not compelled to credit Chen’s explanation for this

discrepancy—that he forgot—because it did not resolve the

inconsistency   and,   within     his    explanation,     he   provided

unresponsive answers and confusing details.             See Majidi v.

Gonzales, 430 F.3d at 80–81. Chen’s explanation that there was

no inconsistency because he testified that his wife looked for

a doctor, not that she found one, is not compelling given that




                                  4
he did not proffer this explanation before the IJ when questioned

about the discrepancy. See id.

     Given the demeanor and inconsistency findings, the agency

reasonably found Chen not credible, see Xiu Xia Lin v. Mukasey,

534 F.3d at 165-66, even if an additional inconsistency relating

to the sex of the unborn child in his wife’s second pregnancy

was the result of translation error, see Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006) (holding remand

unnecessary when court can “confidently predict” that agency

would    reach   same   decision   absent    error).   That   adverse

credibility determination is dispositive of asylum, withholding

of removal, and CAT relief because all three claims are based

on the same factual predicate.         See Paul v. Gonzales, 444 F.3d

148, 156-57 (2d Cir. 2006).

        For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.

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




                                   5
