Min Hui Chen v. Holder ( 2011 )

10-1620-ag
Chen v. Holder
BIA
Morace, IJ
A099 939 752
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 15th day of April, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 MIN HUI CHEN,
14 Petitioner,
15
16 v. 10-1620-ag
17 NAC
18 ERIC H. HOLDER, JR.,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Corey Lee, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; David V. Bernal, Assistant
27 Director; Liza S. Murcia, Attorney,
28 Office of Immigration Litigation,
29 United States Department of Justice,
30 Washington, D.C.
31
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 in part and DISMISSED in part.
5 Min Hui Chen, a native and citizen of the People’s
6 Republic of China, seeks review of an April 2, 2010, order
7 of the BIA affirming the August 18, 2008, decision of
8 Immigration Judge (“IJ”) Philip Morace, denying Chen’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Minhui
11 Chen No. A099 939 752 (BIA Apr. 2, 2010), aff’g No. A099 939
12 752 (Immig. Ct. N.Y. City Aug. 18, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision including the portions not explicitly
17 discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
18 391, 394 (2d Cir. 2005); Zaman v. Mukasey, 514 F.3d 233, 237
19 (2d Cir. 2008). The applicable standards of review are
20 well-established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
21 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Salimatou Bah
22 v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).
2
1 Because Chen has challenged only purely factual
2 determinations and the agency’s exercise of discretion in
3 pretermitting her asylum application, we lack jurisdiction
4 to review that claim and dismiss her petition for review to
5 the extent it challenges the pretermission of her asylum
6 application. See 8 U.S.C. § 1158(a)(3); See also Xiao Ji
7 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326-27 (2d Cir.
8 2006); see also Li Hua Lin v. U.S. Dep’t of Justice, 453
9 F.3d 99, 104-05 (2d Cir. 2006). Chen’s argument that her
10 change in personal circumstances constituted an exception to
11 the one year filing deadline is unexhausted. See Lin Zhong
12 v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir. 2007)
13 (describing the issue exhaustion requirement as an
14 “affirmative defense subject to waiver”).
15 We deny the petition for review to the extent Chen
16 challenges the agency’s denial of withholding of removal and
17 CAT relief. Substantial evidence supports the agency’s
18 adverse credibility determination. See Xiu Xia Lin, 534
19 F.3d at 167. Under the REAL ID Act, which applies to Chen’s
20 application for relief, “an IJ may rely on any inconsistency
21 or omission in making an adverse credibility determination
22 as long as the ‘totality of the circumstances’ establishes
3
1 that an asylum applicant is not credible.” Xiu Xia Lin, 534
2 F.3d at 167; see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265
3 (BIA 2007) (finding that “the REAL ID Act no longer requires
4 the trier of fact to find a nexus between inconsistencies
5 and the ‘heart of the claim’”). The IJ reasonably found
6 Chen not credible based on: (1) her inconsistent testimony
7 regarding her travel from China to the United States; (2) a
8 discrepancy between the date on her wedding photograph and
9 her testimony that she did not meet her husband until after
10 that date; (3) Chen’s implausible testimony regarding her
11 release from detention in China; and (4) Chen’s implausible
12 testimony regarding her practice of Falun Gong in the United
13 States. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d
14 Cir. 2007) (stating that so long as an IJ’s finding is
15 “tethered to record evidence, and there is nothing else in
16 the record from which a firm conviction of error could
17 properly be derived,” the Court will not disturb the
18 inherent implausibility finding). We further find no error
19 in the IJ’s refusal to credit Chen’s explanations for the
20 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
21 (2d Cir. 2005).
22
4
1 Because Chen’s claims were all based on the same
2 factual predicate, the agency’s adverse credibility
3 determination was a proper basis for denial of both her
4 applications for withholding of removal and CAT relief. See
5 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Paul v.
6 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
7 For the foregoing reasons, the petition for review is
8 DENIED in part and DISMISSED in part. As we have completed
9 our review, any stay of removal that the Court previously
10 granted in this petition is VACATED, and any pending motion
11 for a stay of removal in this petition is DISMISSED as moot.
12 Any pending request for oral argument in this petition is
13 DENIED in accordance with Federal Rule of Appellate
14 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
5