Yongbin Chen v. Lynch ( 2015 )

14-1085
Chen v. Lynch
BIA
Nelson, IJ
A089 099 856
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 14th day of July, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 RAYMOND J. LOHIER,
10 Circuit Judges.
11 _____________________________________
12
13 YONGBIN CHEN,
14 Petitioner,
15
16 v. 14-1085
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Mouren Wu, New York, NY.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Eric W.
28 Marsteller, Senior Litigation
29 Counsel; Joseph D. Hardy, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Yongbin Chen, a native and citizen of China,
11 seeks review of a March 21, 2014, decision of the BIA affirming
12 an April 9, 2012, decision of an Immigration Judge (“IJ”),
13 denying Chen’s application for asylum, withholding of removal,
14 and relief under the Convention Against Torture (“CAT”). In
15 re Yongbin Chen, No. A089 099 856 (B.I.A. Mar. 21, 2014), aff’g
16 No. A089 099 856 (Immig. Ct. N.Y. City Apr. 9, 2012). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we have reviewed the
20 IJ’s decision, including the grounds not expressly addressed
21 by the BIA. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d
22 Cir. 2006). The applicable standards of review are well
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
2 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
3 For asylum applications governed by the REAL ID Act, such
4 as Chen’s, the IJ may, considering the totality of the
5 circumstances, base a credibility finding on omissions and
6 inconsistencies without regard to whether they go “to the heart
7 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
8 Xia Lin, 534 F.3d at 163-65. We “defer . . . to an IJ’s
9 credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder could
11 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
12 at 167. Here, the totality of the circumstances, including
13 Chen’s internally inconsistent testimony, omissions from his
14 asylum application, and inconsistencies between his testimony
15 and record evidence, support the IJ’s credibility
16 determination.
17 The agency reasonably relied on omissions in Chen’s asylum
18 application when compared with his testimony. See Xiu Xia Lin,
19 534 F.3d at 166, n.3. Chen’s asylum application failed to
20 mention, contrary to his testimony, that he had a Chinese
21 passport; that police officers came to his home and place of
3
1 work to look for him after he failed to report to the police
2 station as required; and that he was denied food during
3 detention. The IJ reasonably rejected Chen’s explanations
4 for his omissions. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
5 Cir. 2005). The IJ also reasonably found that Chen’s testimony
6 was internally inconsistent and inconsistent with his asylum
7 application regarding the dates he left China and entered the
8 United States.
9 Chen’s testimony was also inconsistent with his supporting
10 evidence. The letter from Chen’s church states that Chen
11 became a Christian in July 2007, but Chen testified that he only
12 started attending church in March 2008. Chen also testified
13 that during detention he was slapped so hard that his face was
14 bruised, but his father’s letter does not mention that he was
15 injured.
16 Given the inconsistencies between Chen’s testimony,
17 personal statement, and record evidence, as well as omissions
18 in his application, substantial evidence supports the agency’s
19 adverse credibility determination, which provided an adequate
20 basis for denying him asylum, withholding of removal, and CAT
21 relief. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
4
1 F.3d at 167; see also Paul v. Gonzales, 444 F.3d 148, 155-57
2 (2d Cir. 2006).
3 Having found Chen not credible as to whether he suffered
4 past persecution, the IJ also reasonably found that Chen did
5 not meet his burden to establish a well-founded fear of
6 persecution in China based on his practice of Christianity in
7 the United States alone. The minimal evidence Chen provided,
8 including very brief letters from the church he allegedly
9 attends, did not establish that he is likely to be singled out
10 for persecution in China. See Hongsheng Leng v. Mukasey, 528
11 F.3d 135, 143 (2d Cir. 2008) (“[T]o establish a well-founded
12 fear of persecution in the absence of any evidence of past
13 persecution, an alien must make some showing that authorities
14 in his country of nationality are either aware of his activities
15 or likely to become aware of his activities.”). This finding
16 was sufficient to deny Chen asylum, withholding of removal, and
17 CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir.
18 2010).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
5
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O=Hagan Wolfe, Clerk
6