Jun Mou Chen v. Holder ( 2012 )

10-4671 BIA
Chen v. Holder Hom, IJ
A088 344 429
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 11th day of September, two thousand twelve.
5
6
7 PRESENT:
8 JOSEPH M. McLAUGHLIN,
9 DEBRA ANN LIVINGSTON,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 JUN MOU CHEN, AKA JUNMOU CHEN,
15 Petitioner,
16
17 v. 10-4671
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Pro Se.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Thomas B. Fatouros, Senior
28 Litigation Counsel; Annette M.
29 Wietecha, Office of Immigration
30 Litigation, United States Department
31 of 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
4 is DENIED.
5 Jun Mou Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a November 5, 2010,
7 decision of the BIA affirming the December 1, 2008, decision
8 of Immigration Judge (“IJ”) Sandy K. Hom, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Jun Mou
11 Chen, No. A088 344 429 (B.I.A. Nov. 5, 2010), aff’g No. A088
12 344 429 (Immig. Ct. N.Y. City Dec. 1, 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 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 For asylum applications governed by the amendments made
22 to the Immigration and Nationality Act by the REAL ID Act of
23 2005, the agency may, considering the totality of the
2
1 circumstances, base a credibility finding on an asylum
2 applicant’s “demeanor, candor, or responsiveness,” the
3 plausibility of his account, and inconsistencies in his
4 statements, without regard to whether they go “to the heart
5 of the applicant’s claim.” See 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
7 167 (2d Cir. 2008). We will “defer therefore to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
11 In this case, the agency reasonably based its adverse
12 credibility determination on the internal inconsistencies in
13 Chen’s testimony, and between his testimony and his asylum
14 application, as well as his demeanor.
15 As the agency noted, there were discrepancies between
16 Chen’s testimony and his asylum application regarding his
17 altercation with the cadres, and whether a particular
18 officer fell down or was pushed by Chen. The agency
19 properly relied on the cumulative effect of these
20 inconsistencies to support the adverse credibility finding.
21 See 8 U.S.C. § 1158(b)(1)(B)(iii) (an IJ may base a
22 credibility determination on “the totality of the
3
1 circumstances, and all relevant factors”). The adverse
2 credibility determination is further supported by the IJ’s
3 demeanor finding. In finding Chen not credible, the IJ
4 reasonably relied in part on his demeanor, noting his long
5 pauses before answering certain questions. Because the IJ
6 was in the best position to observe Chen’s manner while
7 testifying, we afford this finding particular deference.
8 See Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.
9 2004), overruled on other grounds by Shi Liang Lin v. U.S.
10 Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).
11 Therefore, in this case, the totality of the
12 circumstances support the agency’s adverse credibility
13 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
14 Lin, 534 F.3d at 167. Because the adverse credibility
15 determination is dispositive of Chen’s asylum claim, we do
16 not reach his argument regarding resistance to a coercive
17 population control program. Furthermore, because the only
18 evidence of a threat to Chen’s life or freedom depended upon
19 his credibility, the adverse credibility determination in
20 this case necessarily precludes success on his claims for
21 withholding of removal and CAT relief. See Paul v.
22
4
1 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
2 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
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