Ming Chen v. Holder , 541 F. App'x 130 ( 2013 )

11-3564
Chen v. Holder
BIA
Burr, IJ
A073 767 867
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 14th day of November, two thousand thirteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 MING CHEN, AKA MING ZHENG,
14 Petitioner,
15
16 v. 11-3564
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Offices of Michael
24 Brown, New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Carl H. McIntyre, Assistant Director;
28 John J. W. Inkeles, Trial Attorney;
29 Office of Immigration Litigation, Civil
30 Division, United States Department of
31 Justice, 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 Ming Chen, a native and citizen of the
6 People’s Republic of China, seeks review of an August 26,
7 2011, decision of the BIA affirming the December 14, 2009,
8 decision of Immigration Judge (“IJ”) Sarah M. Burr denying his
9 application for asylum, withholding of removal and relief
10 under the Convention Against Torture (“CAT”). In re Ming
11 Chen, No. A073 767 867 (B.I.A. Aug. 26, 2011), aff’g No. A073
12 767 867 (Immig. Ct. N.Y. City Dec. 14, 2009). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history of the case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 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 Chen’s asylum application is governed by the REAL ID Act.
22 For such applications, 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); Xiu
5 Xia Lin, 534 F.3d at 163-64.
6 Substantial evidence supports the agency’s determination
7 that Chen did not testify credibly regarding his claim that he
8 was persecuted in China on the basis of his Christian faith.
9 The IJ reasonably relied on the implausibility of Chen’s
10 testimony, see 8 U.S.C. § 1158(b)(1)(B)(iii), and the IJ’s
11 reasoning was “tethered to record evidence,” Wengsheng Yan v.
12 Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). For example, the
13 agency reasonably determined that it was implausible that Chen
14 had failed to apply for asylum until his February 2009 arrest
15 – nearly 14 years after his 1995 order of deportation –
16 because his experience with the Porges Law Firm left him
17 distrustful of attorneys, particularly in light of Chen’s
18 testimony that he sought the assistance of an attorney when he
19 filed an application for a U-visa in 2007. Because the IJ’s
20 implausibility finding is based on record facts, and because
21 “there is nothing else in the record from which a firm
22 conviction of error could properly be derived,” see Wengsheng
3
1 Yan, 509 F.3d at 67, the inherent implausibility of Chen’s
2 testimony provides substantial support for the agency’s
3 adverse credibility determination. See 8 U.S.C.
4 § 1158(b)(1)(B)(iii) (providing that the agency may base a
5 credibility determination on “the plausibility of [the
6 applicant’s] account”). The agency also reasonably relied on
7 Chen’s testimony that he had previously lied to immigration
8 officials and would be willing to lie again to remain in the
9 United States to determine that Chen was not credible. An
10 applicant’s willingness to lie under oath “infect[s] the
11 balance of his uncorroborated or unauthenticated evidence.”
12 See Siewe v. Gonzales, 480 F.3d 160, 170-71 (2d Cir. 2007).
13 The adverse credibility determination is further
14 supported by the IJ’s finding that Chen failed to reasonably
15 corroborate his testimony. An applicant’s failure to
16 corroborate testimony may bear on credibility, either because
17 the absence of particular corroborating evidence is viewed as
18 suspicious, or because the absence of corroboration in general
19 makes an applicant unable to rehabilitate testimony that has
20 already been called into question. Biao Yang v. Gonzales, 496
21 F.3d 268, 273 (2d Cir. 2007). Thus, the IJ reasonably
22 concluded that, in light of Chen’s lack of credibility, his
4
1 failure to offer evidence supporting his claim that he was
2 persecuted in China further undermined his credibility.
3 As Chen argues, it may have been error for the agency to
4 rely on his lack of doctrinal knowledge in finding him not
5 credible. See Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir,
6 2006). Regardless of this potential error, as discussed
7 above, the other bases for the agency’s adverse credibility
8 determination are substantially supported by the record.
9 Accordingly, despite this flaw in the agency’s analysis,
10 remand of these proceedings would be futile. See Xiao Ji Chen
11 v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006)
12 (holding that an error does not require remand if remand would
13 be futile because “we can state with confidence that the same
14 decision would be made if we were to remand”).
15 Given the inherent implausibility of Chen’s testimony, as
16 well as his failure to corroborate his claims, the agency’s
17 adverse credibility determination is supported by substantial
18 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
19 F.3d at 167(explaining that we “defer . . . to an IJ’s
20 credibility determination unless, from the totality of the
21 circumstances, it is plain that no reasonable fact-finder
22 could make such an adverse credibility ruling”). Accordingly,
5
1 the agency did not err in denying Chen’s application for
2 asylum, withholding of removal and CAT relief. See Paul v.
3 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4 Chen also argues that the agency’s adverse credibility
5 determination was the result of the ineffective assistance of
6 his counsel, and the BIA erred in declining to remand his case
7 on the basis of that ineffective assistance. However, an
8 alien claiming ineffective assistance of counsel “must . . .
9 show prejudice resulting from counsel’s alleged deficiencies.”
10 Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010). Chen
11 has failed to demonstrate that he was prejudiced by his
12 counsel’s ineffective assistance. Although Chen’s counsel
13 demonstrated that she was not familiar with the applicable
14 evidentiary deadlines, Chen does not explain how her failure
15 to timely submit evidence prejudiced him as he identifies
16 neither what evidence was excluded nor how that evidence would
17 have changed the outcome of his proceedings. Further,
18 although the IJ identified the discrepancies between Chen’s
19 “bare bones” asylum application and his testimony as one basis
20 for the adverse credibility determination, the BIA determined
21 that, even absent those discrepancies, the IJ’s adverse
22 credibility determination was not clearly erroneous. As
6
1 discussed above, the agency’s adverse credibility
2 determination is supported by substantial evidence in the
3 record. Accordingly, Chen failed to establish that the
4 requisite prejudice to support his claim of ineffective
5 assistance.
6 For the foregoing reasons, the petition for review is
7 DENIED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
7