Chen v. Lynch

15-1239
Chen v. Lynch
BIA
Balasquide, IJ
A200 894 325
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 9th day of August, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 FEI CHEN,
14 Petitioner,
15
16 v. 15-1239
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhen Liang Li, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Blair T.
27 O’Connor, Assistant Director;
28 Maarja T. Luhtaru, 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 is
4 DENIED.
5 Petitioner Fei Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a March 19, 2015 decision
7 of the BIA, affirming a September 11, 2013 decision of an
8 Immigration Judge (“IJ”) denying Chen’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Fei Chen, No. A200 894 325 (B.I.A. Mar.
11 19, 2015), aff’g No. A200 894 325 (Immig. Ct. N.Y. City Sept.
12 11, 2013). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Ordinarily, we review the BIA’s decision – and not the IJ’s
15 on appeal. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
16 520, 522 (2d Cir. 2005). Under the circumstances of this case,
17 we review the IJ’s decision as modified by the BIA. See id.
18 The applicable standards of review are well established.
19 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
20 165-66 (2d Cir. 2008) (per curiam).
2
1 For asylum applications like Chen’s, governed by the REAL
2 ID Act, the agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility finding on an asylum
4 applicant’s “demeanor, candor, or responsiveness,” the
5 plausibility of his account, and inconsistencies in his
6 statements, “without regard to whether” they go “to the heart
7 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
8 Xia Lin, 534 F.3d at 163-64. This Court “defer[s] . . . to an
9 IJ’s credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder could
11 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
12 at 167. As discussed below, substantial evidence supports the
13 agency’s adverse credibility determination.
14 The credibility determination was properly based on the
15 inconsistencies between Chen’s testimony and evidence
16 concerning the demolition of his father’s home--the basis of
17 Chen’s asylum claim. Id. Chen testified that the government
18 demolished his father’s home in 2010; he also testified that
19 his father moved in with his uncle after the house was destroyed.
20 Chen’s father’s letter, however, was dated 2013 and listed the
21 address of the purportedly demolished home as his return
3
1 address. When asked to explain why his father would use an
2 address that no longer existed, Chen responded that it was his
3 father’s decision. The agency was not required to credit this
4 explanation. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
5 2005).
6 Nor did the agency err in relying in part on the additional
7 minor inconsistency concerning where Chen’s passport was taken.
8 See Xiu Xia Lin, 534 F.3d at 163-64. Chen testified that his
9 passport was taken from him at “home” (after allegedly having
10 fled from his father’s home); when asked to clarify what he meant
11 by “home,” Chen said his uncle’s home, which he considered as
12 a home. The agency reasonably concluded that while the
13 inconsistency was minor, it further called into doubt whether
14 Chen’s father’s home was taken by the government, and the agency
15 did not err in rejecting Chen’s explanation, see Majidi, 430
16 F.3d at 80.
17 Considering the totality of the circumstances, it cannot
18 be said “that no reasonable fact-finder could make such a
19 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. After all,
20 “[a] petitioner ‘must do more than offer a plausible explanation
21 for his inconsistent statements to secure relief; he must
4
1 demonstrate that a reasonable fact-finder would be compelled
2 to credit his testimony.’” Majidi, 430 F.3d at 80 (quoting Zhou
3 Yun Zhang v. INS, 386 F.3d 66,76 (2d Cir. 2004)). Because all
4 forms of relief (asylum, withholding of removal, and CAT relief)
5 were based on the same factual predicate, the adverse
6 credibility determination is dispositive of all three. See
7 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
5