Chen v. Sessions ( 2018 )

17-430
Chen v. Sessions
BIA
Poczter, IJ
A205 048 527
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
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 September, two thousand eighteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 MEI HUI CHEN,
14 Petitioner,
15
16 v. 17-430
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Carl H.
27 McIntyre, Assistant Director;
28 Justin R. Markel, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
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 Petitioner Mei Hui Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a January 19,
7 2017, decision of the BIA affirming a February 25, 2016,
8 decision of an Immigration Judge (“IJ”) denying asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Mei Hui Chen, No. A205 048
11 527 (B.I.A. Jan. 19, 2017), aff’g No. A205 048 527 (Immig.
12 Ct. N.Y. City Feb. 25, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Security, 448
18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
19 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
21 “Considering the totality of the circumstances, and all
22 relevant factors, a trier of fact may base a credibility
2
1 determination on the demeanor, candor, or responsiveness of
2 the applicant or witness, the inherent plausibility of the
3 applicant’s or witness’s account, the consistency between
4 the applicant’s or witness’s written and oral statements .
5 . . , and the internal consistency of each such statement .
6 . . without regard to whether an inconsistency, inaccuracy,
7 or falsehood goes to the heart of the applicant’s claim.”
8 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534
9 F.3d at 163-64. Substantial evidence supports the agency’s
10 determination that Chen was not credible as to her claim
11 that family planning officials forced her to undergo
12 sterilization in 2002, that police detained and beat her in
13 2011 for attending an unregistered church in China, and
14 that she fears future religious persecution.
15 The agency reasonably relied in part on the demeanor
16 exhibited by Chen and her husband. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81
18 n.1 (2d Cir. 2005) (recognizing that particular deference
19 is given to the trier of fact’s assessment of demeanor).
20 That finding is supported by the record, which reflects
21 that they were unresponsive, evasive, and hesitant on
22 cross-examination, even when answering relatively simple
3
1 questions about their daily life including their
2 celebration of religious holidays, thus allowing the
3 inference that they sought time to formulate answers rather
4 than they testified from memory.
5 The demeanor finding and the overall credibility
6 determination are bolstered by record inconsistencies. See
7 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
8 Cir. 2006). The agency reasonably found that Chen’s and her
9 husband’s testimony was internally inconsistent as well as
10 inconsistent with each other’s testimony regarding when Chen
11 told him she had been sterilized, whether her husband was in
12 China when she was sterilized, when her husband left China
13 for the United States, whether she discussed Christianity
14 with her husband when she converted or (only years later when
15 she arrived in the United States), and whether she knew that
16 her husband’s asylum application had been denied on
17 credibility grounds. See 8 U.S.C. § 1158(b)(1)(B)(iii).
18 Neither Chen nor her husband provided compelling explanations
19 for these inconsistencies. See Majidi, 430 F.3d at 80 (“A
20 petitioner must do more than offer a plausible explanation
21 for h[er] inconsistent statements to secure relief; [s]he
22 must demonstrate that a reasonable fact-finder would be
4
1 compelled to credit h[er] testimony.” (internal quotation
2 marks omitted)).
3 The agency also did not err in finding implausible Chen’s
4 and her husband’s testimony that he fled a house fire on the
5 evening of February 14, 2002, and departed China at 8:00 a.m.
6 the following morning using a false passport with his
7 photograph despite no prior plans to travel to the United
8 States. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Wensheng
9 Yan v. Mukasey, 509 F.3d 63, 66-68 (2d Cir. 2007) (recognizing
10 that adverse credibility determination may be based on
11 inherent implausibility if the “finding is tethered to record
12 evidence” or based on common sense).
13 Having questioned Chen’s credibility, the agency
14 reasonably relied further on her failure to rehabilitate
15 her testimony with sufficient corroborating evidence. “An
16 applicant’s failure to corroborate . . . her testimony may
17 bear on credibility, because the absence of corroboration
18 in general makes an applicant unable to rehabilitate
19 testimony that has already been called into question.”
20 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
21 The IJ reasonably declined to afford weight to unsworn
22 letters from Chen’s mother and friend in China. See Y.C.
5
1 v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to
2 agency’s decision to afford little weight to husband’s
3 letter because it was unsworn and from an interested
4 witness). The remaining evidence is not probative as to
5 whether Chen’s tubal ligation was forced, as required to
6 establish persecution. See 8 U.S.C. § 1101(a)(42). The
7 agency was not compelled to conclude that an unsworn letter
8 that Chen attends church in the United States, pictures of
9 Chen in church, and a letter from a church member stating
10 that she has seen Chen in church were sufficient to
11 rehabilitate Chen’s claim that she is Christian. See
12 8 U.S.C. § 1158(b)(1)(B)(iii); see also Biao Yang, 496 F.3d
13 at 273.
14 Given the demeanor, inconsistency, implausibility, and
15 corroboration findings, which call into question Chen’s
16 claims of past persecution, her practice of Christianity, and
17 her credibility as a whole, the agency’s adverse credibility
18 determination is supported by substantial evidence and was
19 dispositive of asylum, withholding of removal, and CAT
20 relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
21 2006).
22
6
1 Counsel for the Petitioner represents to this Court that
2 “[o]n November 17, 2014, the Board sustained Chen’s appeal,
3 holding that the Immigration Judge’s finding as to the
4 credibility of testimony was clearly erroneous.” Brief for
5 Petitioner at 5. However, in its November 17, 2014,
6 decision, the Board did not hold that the IJ’s finding as to
7 the credibility of testimony was clearly erroneous. Instead,
8 the Board stated, “[T]he respondent has presented evidence,
9 which was previously unavailable, and we are limited in our
10 fact-finding authority on appeal. Consequently, we find
11 remand warranted for the Immigration Judge to address in the
12 first instance the respondent’s evidence on appeal and its
13 bearing on the respondent’s credibility.” Certified
14 Administrative Record 243 (citations and footnote omitted).
15 Counsel is cautioned that any misrepresentation in future
16 submissions will incur the risk of sanctions.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of removal
19 that the Court previously granted in this petition is VACATED,
20 and any pending motion for a stay of removal in this petition
21 is DISMISSED as moot. Any pending request for oral argument
22 in this petition is DENIED in accordance with Federal Rule of
7
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe
5 Clerk of Court
8