Yuhua Chen v. Lynch ( 2016 )

13-4476
Chen v. Lynch
BIA
Videla, IJ
A088 349 868
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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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 1st day of February, two thousand sixteen.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
YUHUA CHEN,
Petitioner,
v. 13-4476
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Corey T. Lee, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Russell J.E. Verby, Senior
Litigation Counsel; Elizabeth R.
Chapman, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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 Yuhua Chen, a native and citizen of China,
seeks review of an October 23, 2013, order of the BIA,
affirming the February 16, 2012, decision of an Immigration
Judge (“IJ”), which denied asylum, withholding of removal,
and Convention Against Torture (“CAT”) relief. In re Yuhua
Chen, No. A088 349 868 (B.I.A. Oct. 23, 2013), aff’g No.
A088 349 868 (Immig. Ct. New York City Feb. 16, 2012). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision, including those portions not explicitly
discussed by the BIA. 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); see
also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
2008) (per curiam).
For applications governed by the REAL ID Act, like
Chen’s, the agency may base a credibility finding on an
applicant’s demeanor, the plausibility of his account, and
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inconsistencies in his statements, without regard to whether
they go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “We defer therefore to an IJ’s
credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
Initially, the agency reasonably relied in part on
Chen’s demeanor, finding that much of his testimony was
unresponsive and that he seemed to be testifying from a
script. Because the IJ’s demeanor finding is supported by
the record and he was in the best position to observe Chen’s
manner while he was testifying, we afford the demeanor
finding particular deference. Dong Gao v. BIA, 482 F.3d
122, 126-27 (2d Cir. 2007).
The IJ’s demeanor finding is further supported by
inconsistencies in Chen’s testimony. See Li Hua Lin v. U.S.
Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). Chen
testified inconsistently regarding whether he left China
with a legally obtained passport or whether a snakehead
provided him with a passport. Chen also testified
inconsistently regarding when he decided to leave China.
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When asked to explain this inconsistency, Chen stated that
he was confused, nervous and dizzy. The IJ reasonably found
this explanation unpersuasive. See Majidi v. Gonzales, 430
F.3d 77, 80 (2d Cir. 2005). Chen also testified that he
attended college from 2004 until 2007, but upon further
questioning stated that he stopped attending college after
his girlfriend’s abortion in 2006.
Chen’s argument that these inconsistencies are minor
and “tangential” is without merit. An IJ may reasonably
rely on minor inconsistencies if their cumulative effect
supports the adverse credibility determination, as they do
here. Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).
Having questioned Chen’s credibility, the agency
reasonably determined that Chen failed to provide sufficient
corroborating evidence to rehabilitate his inconsistent
testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
Cir. 2007). The agency reasonably attributed little weight
to much of the evidence Chen submitted, including the
letters from his family members and an abortion certificate
for Chen’s girlfriend. Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 342 (2d Cir. 2006). Moreover, the
agency reasonably determined that even if given probative
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weight, the abortion certificate would not rehabilitate the
established inconsistencies in Chen’s testimony or affect
the IJ’s demeanor finding.
Given the IJ’s findings with respect to petitioner’s
demeanor, the inconsistencies in petitioner’s testimony, and
the absence of meaningful corroboration of petitioner’s
testimony, the agency’s adverse credibility determination is
supported by substantial evidence and provided an adequate
basis for denying Chen asylum, withholding of removal, and
CAT relief. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534 F.3d at 167; see also Paul v. Gonzales, 444 F.3d 148,
155-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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