Jinsheng Chen v. Lynch , 633 F. App'x 798 ( 2015 )

13-2608
Chen v. Lynch
BIA
Burr, IJ
A205 047 821
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 December, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 Jinsheng Chen,
14 Petitioner,
15
16 v. 13-2608
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lewis G. Hu, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Terri J. Scadron, Assistant
27 Director; Kathryn L. Deangelis,
28 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Jinsheng Chen, a native and citizen of the People’s
10 Republic of China, seeks review of a June 17, 2013 decision
11 of the BIA affirming the October 1, 2012 decision of
12 Immigration Judge (“IJ”) Sarah M. Burr, which denied his
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re
15 Jinsheng Chen, No. A205 047 821 (B.I.A. June 17, 2013),
16 aff’g No. A205 047 821 (Immig. Ct. N.Y. City Oct. 1, 2012).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as modified by the BIA decision, i.e.,
21 minus the arguments for denying relief (Chen’s lack of
22 doctrinal knowledge) that were rejected by the BIA. See Xue
23 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
24 Cir. 2005). The applicable standards of review are well
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
2 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 For asylum applications that like Chen’s, are governed
4 by the REAL ID Act of 2005, the agency may, “[c]onsidering
5 the totality of the circumstances,” base a credibility
6 finding on an asylum applicant’s “demeanor, candor, or
7 responsiveness,” the plausibility of his account, and
8 inconsistencies in his statements, without regard to whether
9 they go “to the heart of the applicant’s claim,” so long as
10 they reasonably support an inference that the applicant is
11 not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
12 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer
13 . . . to an IJ’s credibility determination unless, from the
14 totality of the circumstances, it is plain that no
15 reasonable fact-finder could make such an adverse
16 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. In this
17 case, the agency reasonably based its adverse credibility
18 determination on inconsistencies between Chen’s testimony
19 and that of his witness, and the lack of a plausible
20 explanation for those inconsistencies.
21 The IJ found that Chen failed to meet his burden of
22 proof for asylum because his account of his Falun Gong
3
1 activities was inconsistent with the testimony of his
2 friend, Chen Long Dong (“the witness”). Substantial
3 evidence supports the IJ’s findings that Chen testified
4 inconsistently with the witness with respect to where he and
5 the witness first met, whether they arranged in advance to
6 practice Falun Gong together, and how many Falun Gong
7 positions Chen practices.
8 While the inconsistency regarding where Chen and the
9 witness first met is relatively minor, the agency was
10 nonetheless entitled to rely on the “cumulative effect” of
11 the inconsistencies. See Tu Lin v. Gonzales, 446 F.3d 395,
12 402 (2d Cir. 2006) (emphasizing that “even where an IJ
13 relies on discrepancies or lacunae that, if taken
14 separately, concern matters collateral or ancillary to the
15 claim,. . . the cumulative effect may nevertheless be deemed
16 consequential by the fact-finder”(internal quotation marks
17 omitted)); see also Liang Chen v. U.S. Att'y Gen., 454 F.3d
18 103, 106-107 (2d Cir. 2006) (“[A]n IJ need not consider the
19 centrality vel non of each individual discrepancy or
20 omission” and can instead “rely upon the cumulative impact
21 of such inconsistencies,. . . and may conduct an overall
22 evaluation of testimony in light of its rationality or
4
1 internal consistency and the manner in which it hangs
2 together with other evidence.”(internal quotation marks
3 omitted)). Furthermore, Chen had an opportunity to address
4 the inconsistencies, but Chen failed to address them. See
5 Ming Shi Xue v. BIA, 439 F.3d 111, 120-21 (2d Cir. 2006) (An
6 IJ need only give an applicant a chance to reconcile
7 inconsistences that are not self-evident; otherwise, it is
8 the applicant’s “responsibility to proffer, with or without
9 prompting, an explanation for what appears on its face to be
10 a clear contradiction.”).
11 The totality of the circumstances supports the agency’s
12 adverse credibility determination. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because
14 the only evidence of a threat to Chen’s life or freedom
15 depended upon his credibility, the adverse credibility
16 finding necessarily precludes success on his claims for
17 asylum, withholding of removal, and CAT relief. See Paul v.
18 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
5
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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