Chen Song v. Holder ( 2013 )

12-3761
Song v. Holder
BIA
Zagzoug, IJ
A094 793 330
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 5th day of November, two thousand thirteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 CHEN SONG,
14 Petitioner,
15
16 v. 12-3761
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lewis G. Hu, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Anthony W.
27 Norwood, Senior Litigation Counsel;
28 Lisa M. Damiano, Trial Attorney,
29 Office of Immigration Litigation,
30 United 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 Chen Song, a native and citizen of China, seeks review
6 of a August 27, 2012, decision of the BIA affirming the
7 February 7, 2011, 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 Chen Song, No. A094 793 330 (B.I.A. Aug. 27,
11 2012), aff’g No. A094 793 330 (Immig. Ct. N.Y. City Feb. 7,
12 2011). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 both the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales,
16 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
17 of review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
19 (2d Cir. 2009).
20 For applications, like Song’s, governed by the REAL ID
21 Act, the agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding on an asylum
23 applicant’s “demeanor, candor, or responsiveness,” the
2
1 plausibility of his account, and inconsistencies in his
2 statements, without regard to whether they go “to the heart
3 of the applicant’s claim.” See 8 U.S.C.
4 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.
5 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer to an
6 IJ’s credibility determination unless, from the totality of
7 the circumstances, it is plain that no reasonable fact-
8 finder could make such an adverse credibility ruling.” Xiu
9 Xia Lin, 534 F.3d at 167.
10 Here, the totality of the circumstances supports the
11 agency’s adverse credibility determination. The agency
12 reasonably found that Song’s testimony lacked detail about
13 the content of his Christianity classes, given he had
14 attended for eight weeks but was only able to cite one
15 lesson. Similarly, although he testified he had attended
16 church since 2007, his explanation of his faith and how it
17 affected his life was ambiguous and generalized. While this
18 alone would likely not be sufficient to support an adverse
19 credibility finding, see Rizal v. Gonzales, 442 F.3d 84, 86
20 (2d Cir. 2006) (finding a lack of doctrinal knowledge
21 insufficient to support an adverse credibility finding),
22 together with Song’s lack of corroborating evidence and his
3
1 incredible witness, the agency’s determination was
2 reasonable. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d
3 Cir. 2006) (emphasizing that “even where an IJ relies on
4 discrepancies or lacunae that, if taken separately, concern
5 matters collateral or ancillary to the claim, ... the
6 cumulative effect may nevertheless be deemed consequential
7 by the fact-finder”).
8 To establish he had suffered past persecution, Song
9 offered his father’s friend as a witness. The witness had
10 allegedly seen Song two days after his severe beating by the
11 Chinese authorities. However, as the agency properly noted,
12 the witness’s testimony was inconsistent, as she stated that
13 she heard about the cause of Song’s problems from his
14 father, but later said Song had told her himself.
15 Similarly, her testimony was inconsistent regarding when
16 Song’s beating occurred, how long Song was detained, how he
17 was released from prison, and whether he had to pay bail.
18 The IJ determined that the witness’s testimony was not fluid
19 or responsive, but rather seemed to be memorized. These
20 specific examples of confused and inconsistent witness
21 testimony support the adverse credibility finding. See
22 8 U.S.C. §§ 1158(b)(1)(B)(iii).
4
1 In addition, the agency correctly determined that Song
2 did not corroborate either his claim of past persecution or
3 of a well-founded fear of future persecution. See Biao Yang
4 v. Gonzales v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
5 (“An applicant’s failure to corroborate his or her testimony
6 may bear on credibility, because the absence of
7 corroboration in general makes an applicant unable to
8 rehabilitate testimony that has already been called into
9 question.”). As evidence of his past persecution, Song
10 offered letters from family and friends who were interested
11 parties not subject to cross-examination. See Matter of H-
12 L-H & Z-Y-Z, 25 I&N Dec. 209, 214-15 (BIA 2010), overruled
13 in part on other grounds by Hui Lin Huang v. Holder, 677
14 F.3d 130 (2d Cir. 2012). He also offered two medical
15 prescriptions in place of medical records. When questioned
16 about the records, Song stated that perhaps his medical
17 treatment occurred too long ago, and this was all he was
18 able to obtain. The agency was not reasonably compelled to
19 accept this explanation. See Majidi v. Gonzales, 430 F.3d
20 77, 80 (2d Cir. 2005).
21 Song also offered a brief letter from his pastor which
22 did not give any information about his church attendance,
23 and the pastor was unavailable to testify telephonically.
5
1 Even though Song had asked other church members to testify
2 on his behalf, no one did so. See Xiao Ji Chen v. U.S.
3 Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006).
4 Because the only evidence of a threat to Song’s life or
5 freedom depended upon his credibility, the adverse
6 credibility determination in this case also precludes
7 success on his claim for withholding of removal and CAT
8 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
9 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
6