En Hui Chen v. Holder ( 2012 )

11-3014-ag BIA
Chen v. Holder Weisel, IJ
A097 868 188
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 1st day of May, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 EN HUI CHEN,
14 Petitioner,
15
16 v. 11-3014-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Peter D. Lobel, New York, N.Y.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Melissa Neiman-Kelting,
27 Senior Litigation Counsel; Jason
28 Wisecup, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 En Hui Chen, a native and citizen of China, seeks
6 review of a June 28, 2011, decision of the BIA affirming the
7 January 5, 2009, decision of an Immigration Judge (“IJ”),
8 which denied his application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re En Hui Chen, No. A097 868 188 (B.I.A. June
11 28, 2011), aff’g No. A097 868 188 (Immig. Ct. N.Y. City Jan.
12 5, 2009). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review both
15 the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
17 2008). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
19 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
20 Chen challenges the agency’s denial of his application
21 for asylum and withholding of removal, arguing that he
22 provided credible testimony and demonstrated a fear of
23 future persecution in China on account of his Christian
2
1 faith. We deny the petition for review, as the agency’s
2 adverse credibility determination is supported by
3 substantial evidence. Xiu Xia Lin, 534 F.3d at 165-67.
4 For asylum applications, such as Chen’s, governed by
5 the amendments made to the Immigration and Nationality Act
6 by the REAL ID Act of 2005, the agency may, considering the
7 totality of the circumstances, base a credibility finding on
8 an asylum applicant’s “demeanor, candor, or responsiveness,”
9 the plausibility of his or her account, and inconsistencies
10 in his or her statements, without regard to whether they go
11 “to the heart of the applicant’s claim.” See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. In
13 finding Chen not credible, the agency reasonably relied on
14 testimony that was internally inconsistent and conflicted
15 with other evidence in the administrative record. Xiu Xia
16 Lin, 534 F.3d at 167. Chen testified that he decided to
17 leave China in 2006 because he was threatened with arrest
18 for practicing his Christian faith by attending a house
19 church. However, Chen also testified that if his fiancée
20 had not filed a petition for him, he would not have come to
21 the United States, and the administrative record contains
22 evidence of his intent to immigrate through his fiancée as
3
1 early as 2003. The agency reasonably concluded that Chen’s
2 embellishment of his motivation to leave China due to the
3 threat of persecution undermined the credibility of his
4 entire testimony, see Belortaja v. Gonzales, 484 F.3d 619,
5 625 (2d Cir. 2007), and the agency reasonably rejected his
6 explanations that he wanted be with his fiancée in China and
7 that going to the medical exam required for a visa did not
8 demonstrate his intent to immigrate through his fiancée, see
9 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). As
10 the only evidence of a threat to Chen’s life or freedom
11 depended upon his credibility, the adverse credibility
12 determination in this case precludes success on his claims
13 for asylum and withholding of removal. See Paul v.
14 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
15 Chen asserts that despite the adverse credibility
16 determination, the record evidence demonstrates his
17 eligibility for asylum and withholding of removal based on a
18 pattern or practice of persecution of Christians in China.
19 However, the agency reasonably concluded that Chen failed to
20 establish a pattern or practice of persecution of Christians
21 in China because the record did not compel the conclusion
22 that persecution of Christians in China is both systematic
4
1 and pervasive. Matter of A-M-, 23 I&N 737, 740-41 (BIA
2 2005); Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009).
3 The only evidence on which Chen relies to support his
4 pattern or practice claim is an International Religious
5 Freedom Report. This report, standing alone, is
6 insufficient to show the agency erred because it does not
7 rebut the agency’s conclusion that persecution in China is
8 not systematic and pervasive. Santoso, 580 F.3d at 112. To
9 the extent Chen argues that the BIA’s review was inadequate
10 to support its pattern or practice conclusion, he has not
11 overcome the presumption that the agency has taken into
12 account the evidence before it, Xiao Ji Chen v. U.S. Dep’t
13 of Justice, 471 F.3d 315, 337 n. 17 (2d Cir. 2006), as the
14 BIA is not required to “expressly parse or refute on the
15 record each individual argument or piece of evidence offered
16 by the petitioner,” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87
17 (2d Cir. 2007).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6