Qi Hong Chen v. Holder ( 2011 )

10-1551-ag
Chen v. Holder
BIA
Mulligan, IJ
A089 252 717
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 28th day of March, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 Qi Hong Chen,
14 Petitioner,
15
16 v. 10-1551-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Farah Loftus, Century City,
24 California.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Douglas E. Ginsburg,
28 Assistant Director; Matthew B.
29 George, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Qi Hong Chen, a native and citizen of China, seeks
6 review of a March 31, 2010, decision of the BIA affirming
7 the September 18, 2008, decision of Immigration Judge (“IJ”)
8 Thomas J. Mulligan, which denied his application for asylum,
9 withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Qi Hong Chen, No. A089 252
11 717 (B.I.A. Mar. 31, 2010), aff’g No. A089 252 717 (Immig.
12 Ct. N.Y. City Sept. 18, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ 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.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Salimatou Bah v.
20 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Manzur v. DHS, 494
21 F.3d 281, 289 (2d Cir. 2007).
22 For asylum applications governed by the amendments made
23 to the Immigration and Nationality Act by the REAL ID Act of
2
1 2005, the agency may, considering the totality of the
2 circumstances, base a credibility finding on an asylum
3 applicant’s “demeanor, candor, or responsiveness,” the
4 plausibility of his or her account, and inconsistencies in
5 his or her statements, without regard to whether they go “to
6 the heart of the applicant’s claim.” See 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
8 167 (2d Cir. 2008). We will “defer to an IJ’s credibility
9 determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
12 In this case, the IJ reasonably based his adverse
13 credibility determination on Chen’s demeanor, as well as the
14 contradictions, inconsistencies, lack of detail, and long
15 pauses in Chen’s testimony.
16 During Chen’s testimony, when asked by the IJ to
17 describe his wife, such as her interests and hobbies,
18 education level, and employment, Chen replied that she
19 stayed at home, and had no interest or hobbies. When the IJ
20 repeated the question, Chen answered with the date they got
21 married. In response, the IJ asked that Chen describe the
22 wedding, but Chen answered that he and his wife got married
3
1 because they wanted to have children, repeating that answer
2 several times in response to the IJ’s questions asking for
3 more details about their wedding.
4 In addition to this non-responsive testimony, Chen also
5 changed his testimony several times. He first testified
6 that his wife became pregnant in August 2005, and went into
7 hiding in February 2006. He then testified that she
8 discovered her pregnancy and went into hiding the same day,
9 which he variously testified was either in August 2006 or
10 August 2005. He also testified that he was arrested in
11 February 2005, but then changed the date to February 2006.
12 With respect to his wife’s departure from the hospital, he
13 changed his testimony several times as to whether he was
14 with her when she delivered the fetus. Finally, Chen
15 testified that he left China on December 16, 2006, and
16 arrived in the United States on December 23, 2006, but later
17 changed the date to December 25, 2006.
18 These inconsistencies and lack of detail, on which the
19 IJ relied, were proper grounds for his adverse credibility
20 finding. See 8 U.S.C. § 1158(b)(1)(B)(iii). Moreover, the
21 adverse credibility determination is further supported by
22 the IJ’s demeanor finding, to which we give deference. See
4
1 Dong Gao v. B.I.A., 482 F.3d 122, 126-27 (2d Cir. 2007);
2 Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
3 Although Chen contends that the agency did not consider the
4 documents he submitted to corroborate his claim, the IJ’s
5 acknowledgment of these documents was sufficient, as the
6 agency is not required to “expressly parse or refute on the
7 record each individual argument or piece of evidence offered
8 by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270,
9 273-74 (2d Cir. 2006); see also Xiao Ji Chen v. U.S. Dep’t
10 of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006)(“[W]e
11 presume that an IJ has taken into account all of the
12 evidence before him, unless the record compellingly suggests
13 otherwise.”). Given the inconsistencies, lack of detail and
14 responsiveness, and the demeanor finding, the totality of
15 the circumstances supports the adverse credibility
16 determination. See Xiu Xia Lin, 534 F.3d at 167.
17 As the only evidence of a threat to Chen’s life or
18 freedom, or that he was likely to be tortured, depended upon
19 his credibility, the adverse credibility determination
20 necessarily precludes success on the claim for withholding
21 of removal or CAT relief. See Paul v. Gonzales, 444 F.3d
22 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
23 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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