         11-3781
         Chen v. Holder

                                                                                           BIA
                                                                                    Mulligan, IJ
                                                                                   A098 997 257

                               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 24th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROSEMARY S. POOLER,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       YANPING CHEN,
14                Petitioner,
15
16                        v.                                    11-3781
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Feng Li, Moslemi and Associates, New
24                                      York, N.Y.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; Paul Fiorino, Senior
28                                      Litigation Counsel; John M. McAdams,
29                                      Jr., Attorney; Office of Immigration
30                                      Litigation, Civil Division, United
31                                      States Department of Justice,
32                                      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 is

 4   DENIED.
 5       Petitioner Yanping Chen, a native and citizen of the

 6   People’s Republic of China, seeks review of an August 30,

 7   2011, decision of the BIA affirming the February 11, 2010,

 8   decision of Immigration Judge (“IJ”) Thomas J. Mulligan

 9   denying her application for asylum, withholding of removal and

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

11   Yanping Chen, No. A098 997 257 (B.I.A. Aug. 30, 2011), aff’g

12   No. A098 997 257 (Immig. Ct. N.Y. City Feb. 11, 2010).      We

13   assume the parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s opinions.    See Jigme Wangchuck v.

17   DHS, 448 F.3d 524, 528 (2d Cir. 2006).   The applicable

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

19   § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

20   162, 165-66 (2d Cir. 2008).

21       For asylum applications, governed by the REAL ID Act,

22   such as is the case here, the agency may, “[c]onsidering the

23   totality of the circumstances,” base a credibility finding on

                                   2
 1   an asylum applicant’s demeanor, the plausibility of his

 2   account, and inconsistencies in his or his witness’s

 3   statements, without regard to whether they go “to the heart of

 4   the applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii); see

 5   also Xiu Xia Lin, 534 F.3d at 163-64.

 6       Substantial evidence supports the agency’s determination

 7   that Chen did not testify credibly.     The IJ reasonably relied

 8   on inconsistencies in the record.     See 8 U.S.C.

 9   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-

10   64, 166-67.    As the agency noted, Chen’s testimony was

11   internally inconsistent regarding when and why she obtained

12   her notarial birth certificate and when she decided to leave

13   China.   When confronted with the inconsistency between the

14   date of her passport and the date on which she obtained her

15   notarial birth certificate, Chen ultimately stated that she

16   could not remember why she obtained the notarial birth

17   certificate.    The agency was not required to credit that

18   explanation as it was inconsistent with her testimony that she

19   did not decide to leave China until 2005 and contradicted her

20   prior explanation that she obtained the birth certificate in

21   2004 as instructed by the snakehead helping her leave China.

22   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)


                                     3
 1   (finding that an agency need not credit an applicant’s

 2   explanations unless those explanations would compel a

 3   reasonable fact-finder to do so).

 4       Further, in finding Chen not credible, the IJ reasonably

 5   relied in part on her demeanor, noting that Chen was

 6   frequently hesitant and tentative during her testimony.

 7   Because the IJ was in the best position to observe Chen’s

 8   manner while testifying, we afford this demeanor finding

 9   particular deference.   See Zhou Yun Zhang v. INS, 386 F.3d 66,

10   73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang

11   Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).

12       Given the inconsistencies in the record, and in light of

13   our deference to the agency’s findings regarding demeanor, the

14   agency’s adverse credibility determination is supported by

15   substantial evidence.   See 8 U.S.C. § 1158(b)(1)(B)(iii); see

16   also Xiu Xia Lin, 534 F.3d at 167 (explaining that this Court

17   “defer[s] to an IJ’s credibility determination unless, from

18   the totality of the circumstances, it is plain that no

19   reasonable fact-finder could make such an adverse credibility

20   ruling”).   Accordingly, the agency did not err in denying

21   Chen’s application for asylum and withholding of removal, as

22   those claims were based on the same factual predicate.     See


                                    4
 1   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).   Chen has

 2   not challenged the denial of CAT relief.

 3       For the foregoing reasons, the petition for review is

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

 5   that the Court previously granted in this petition is VACATED,

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

 7   is DISMISSED as moot.

 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10




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