Xu Dong Chen v. Holder ( 2011 )

10-1458-ag
Chen v. Holder
BIA
Nelson, IJ
A098 633 024
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 4th day of May, two thousand eleven.
PRESENT:
JON O. NEWMAN,
PIERRE N. LEVAL,
JOSÉ A. CABRANES,
Circuit Judges.
_______________________________________
XU DONG CHEN,
Petitioner,
v. 10-1458-ag
NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Richard M. Evans, Assistant Director;
Aliza B. Alyeshmerni, Trial Attorney,
Office of Immigration Litigation, Civil
Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review is
DISMISSED in part and DENIED in part.
Petitioner Xu Dong Chen, a native and citizen of the People’s
Republic of China, seeks review of a March 31, 2010, order of the
BIA affirming the May 29, 2008, decision of Immigration Judge
(“IJ”) Barbara A. Nelson, pretermitting his asylum application and
denying his application for withholding of removal and relief
under the Convention Against Torture (“CAT”). In re Xu Dong Chen,
No. A098 633 024 (B.I.A. Mar. 31, 2010), aff’g No. A098 633 024
(Immig. Ct. N.Y. City May 29, 2008). We assume the parties’
familiarity with the underlying facts and procedural history of
the case.
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s opinions. See 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);
Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
We are without jurisdiction to consider Chen’s challenge to
the IJ’s pretermission of his asylum application because Chen
challenges only the IJ’s factual determination that he did not
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demonstrate his date of entry or changed circumstances excusing
the untimely filing of his asylum application. See 8 U.S.C. §
1158(a)(3); see also Xiao Ji Chen v. U.S. Dep’t of Justice , 471
F.3d 315, 329 (2d Cir. 2006). Moreover, as Chen has not raised
any challenges to the denial of CAT relief, or to the denial of
any relief based on his claimed violation of the family planning
policy or his illegal exit from China, we review only Chen’s
challenge to the agency’s denial of his application for
withholding of removal with regard to his Falun Gong claim.
The agency determined both that Chen was not credible and,
even if credible, that he had not meet his burden of proof. The
IJ’s adverse credibility determination is supported by substantial
evidence, including: (1) Chen’s demeanor; (2) several implausible
aspects of Chen’s testimony; and (3)inconsistencies in Chen’s
testimony. The IJ reasonably relied on Chen’s testimony to make
a demeanor finding, noting that Chen: (1) was extremely hesitant
and unresponsive in answering questions; (2)clearly memorized his
story and attempted to repeat it by rote to the court; (3) had
difficulties with his testimony upon variation from a script; and
(4) could not remember great portions about how he traveled to the
United States. The IJ’s ultimate judgment regarding the
impression that Chen conveyed, in light of his testimony, merits
deference. See Majidi v. Gonzales, 430 F.3d 77, 81, n.1. (2d Cir.
2005).
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The IJ further found that several aspects of Chen’s testimony
implausible, including that: (1) Chen genuinely practiced Falun
Gong as he failed to identify the correct exercise that he was
doing in photographs taken at a Falun Gong event; and (2) although
Chen knew a villager informed the Chinese government of his Falun
Gong activities, he did not know the villager’s name or gender.
In light of Chen’s testimony that he practiced Falun Gong once a
week from April 2007 until the time of his hearing and that he
only knew a villager had reported him because his family told him,
the IJ could reasonably infer from these facts, “viewed in light
of common sense and ordinary experience,” that the particular
aspects of Chen’s testimony were implausible. Siewe v. Gonzales,
480 F.3d 160, 168-69 (2d Cir. 2007).
Additionally, the IJ reasonably relied on inconsistencies
between Chen’s testimony and the evidence he submitted as: (1)
Chen initially testified that the first Falun Gong activity he
participated in was in September 2006, predating his claimed date
of arrival in the United States, but later testified that the
event took place in September 2007; and (2) when Chen was asked
how he attended a Falun Gong event in New York City, he initially
testified that he and his sister took a car to the event, but upon
further questioning, he testified that he walked to the event.
Because the IJ was entitled to rely on any discrepancy in finding
Chen not credible, the IJ properly relied on these
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inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu
Xia Lin, 534 F.3d at 166-67 n.3. Furthermore, the agency
reasonably declined to credit Chen’s explanations that he misspoke
or that his testimony was not actually inconsistent. See Majidi,
430 F.3d at 80-81 (emphasizing that the agency need not credit an
applicant’s explanations for inconsistent testimony unless those
explanations would compel a reasonable fact-finder to do so).
Finally, the agency reasonably concluded that Chen did not
meet his burden of proof. The IJ gave limited weight to the
corroborating evidence that Chen submitted, including two letters
from his mother and an unauthenticated village committee
certificate regarding the government’s knowledge of his Falun Gong
practices. The IJ reasonably questioned the evidence as the
second letter appeared to have been prepared for litigation and
the village certificate was unauthenticated and not supported by
independent evidence. See Qin Wen Zheng v. Gonzales, 500 F.3d
143, 149 (2d Cir. 2007) (BIA did not abuse discretion declining
to credit a document purportedly sent by local government
officials and requiring an alien to surrender to the authorities
where the document was facially questionable).
Under all the circumstances, the adverse credibility
determination was supported by substantial evidence. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Because the IJ reasonably concluded that
Chen was not credible as to his claim of a well-founded fear of
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persecution, the adverse credibility determination in this case
necessarily precludes success on his claim for withholding of
removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed our
review, any stay of removal that the Court previously granted in
this petition is VACATED, and any pending motion for a stay of
removal in this petition is DISMISSED as moot. Any pending request
for oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit
Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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