Hua Chen v. Holder , 499 F. App'x 61 ( 2012 )

11-4784
Chen v. Holder
BIA
Cheng, IJ
A087 433 087
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of September, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 HUA CHEN,
14 Petitioner,
15
16 v. 11-4784
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Cindy S. Ferrier,
28 Assistant Director; Brendan P.
29 Hogan, Attorney, Office of
30 Immigration Litigation, 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
4 is DENIED.
5 Hua Chen, a native and citizen of the People’s Republic
6 of China, seeks review of an October 31, 2011, decision of
7 the BIA affirming the March 15, 2010, decision of
8 Immigration Judge (“IJ”) Mary Cheng, which denied her
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Hua
11 Chen, No. A087 433 087 (B.I.A. Oct. 31, 2011), aff’g No.
12 A087 433 087 (Immig. Ct. N.Y. City Mar. 15, 2010). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 Initially, while we require petitioners to raise
22 specific issues with the BIA that are later raised in this
23 Court, Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (per
2
1 curiam), where, as here, the BIA addresses issues that were
2 not raised by an applicant in the course of an appeal, we
3 may consider them, Waldron v. INS, 17 F.3d 511, 515 n.7 (2d
4 Cir. 1994).
5 The BIA determined that the IJ’s adverse credibility
6 determination was not clearly erroneous because it was based
7 on “specific and cogent discrepancies” within Chen’s
8 testimony, and between her testimony and the documentary
9 evidence. We find that the BIA’s determination is supported
10 by substantial evidence.
11 The IJ found Chen’s demeanor to be “troubling” because
12 her testimony was “non-responsive, evasive and rehearsed.”
13 For example, Chen was unable to answer a straightforward
14 question regarding her fear of returning to China. Chen
15 does not challenge the demeanor findings, noting only that
16 “[t]he [IJ] was also critical of [her] demeanor.” As Chen
17 has not contested the demeanor findings, she has provided no
18 basis for us to disturb the particular deference due to
19 those findings. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
20 Cir. 2005).
21 The IJ also determined that Chen’s testimony was
22 inconsistent with record evidence regarding when during her
23 pregnancy her alleged abortion occurred, how long the
3
1 abortion procedure lasted, and whether she entered the
2 United States for religious reasons or because of her
3 opposition to China’s family planning policies. For
4 example, Chen’s testimony that she was four months pregnant
5 when the forced abortion occurred in 2008 was inconsistent
6 with medical records as well as her sworn statement during
7 her credible fear interview showing that she was only two
8 months pregnant. Chen’s explanation for this discrepancy
9 that she was two months pregnant at the time of her medical
10 exam, but four months pregnant at the time of the abortion
11 procedure, is inadequate to compel a reasonable fact-finder
12 to credit it, because it fails to explain why Chen told an
13 asylum officer that she was two months pregnant when the
14 procedure occurred. Id.15 Finally, the IJ found Chen’s asylum claim to be
16 implausible because she was unable to reconcile her
17 testimony that the hospital medical staff was able to obtain
18 personal information such as her age, address, and medical
19 history, with her testimony that she was unable to speak
20 with anyone at the hospital during her abortion procedure
21 because she was in pain. Chen’s argument that “it can
22 safely be assumed” that the family planning officials who
23 forcibly took her to the hospital already knew the
4
1 information would not compel a reasonable fact-finder to
2 credit her testimony, especially where Chen also testified
3 that she previously had not been to the hospital where the
4 abortion procedure occurred. Id. at 80.
5 As the only evidence of a threat to Chen’s life or
6 freedom depended upon her credibility, the adverse
7 credibility determination in this case is dispositive of her
8 claims for asylum, withholding of removal, and CAT relief.
9 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue
10 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d
11 Cir. 2005).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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