Shao Ming Chen v. Holder

11-186-ag
Chen v. Holder
BIA
Mulligan, IJ
A088 775 616
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 4th day of April, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 SHAO MING CHEN,
14 Petitioner,
15
16 v. 11-186-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Tina Howe, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ada E. Bosque, Senior
27 Litigation Counsel; Matthew A.
28 Spurlock, Attorney, Office of
29 Immigration Litigation, U.S.
30 Department of Justice, Washington
31 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals’s (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Shao Ming Chen, a native and citizen of the
6 People’s Republic of China, seeks review of the BIA’s December
7 28, 2010, decision affirming the August 13, 2009, decision of
8 Immigration Judge (“IJ”) Thomas J. Mulligan denying Chen’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). See In re Shao
11 Ming Chen, No. A088 775 616 (B.I.A. Dec. 28, 2010), aff’g No.
12 A088 775 616 (Immig. Ct. N.Y. City Aug. 13, 2009). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history of this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision together with the BIA decision. See Xue
17 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
18 2005); see also Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
19 Cir. 2005). The applicable standards of review are well-
20 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
21 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per
22 curiam).
23 We “defer . . . to an IJ’s credibility determination
24 unless, from the totality of the circumstances, it is plain
2
1 that no reasonable fact-finder could make such an adverse
2 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For
3 asylum applications such as Chen’s, governed by the REAL ID
4 Act of 2005, the agency may, considering the totality of the
5 circumstances, base a credibility finding on, inter alia, an
6 applicant’s demeanor, the plausibility of her account, and
7 inconsistencies in her statements, without regard to whether
8 they go “to the heart of the applicant’s claim.” 8 U.S.C. §
9 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163, 164 & n.2,
10 165.
11 Here, substantial evidence supports the agency’s adverse
12 credibility determination. In finding Chen not credible, the
13 IJ reasonably relied in part on Chen’s demeanor, noting that
14 she appeared to testify from a script and that she became
15 “anxious” when confronted about inconsistencies in her
16 testimony. See 8 U.S.C. § 1158(b)(1)(B)(iii). We defer to
17 the IJ’s demeanor finding, especially where, as in this case,
18 the finding is supported by specific examples of
19 inconsistencies in Chen’s evidence. Li Hua Lin v. U.S. Dep’t
20 of Justice, 453 F.3d 99, 109 (2d Cir. 2006). The IJ noted
21 (for example) that, contrary to Chen’s testimony that her
22 mother and father were detained, the letters from her parents
23 did not mention any such detention. Accordingly, we find no
24 error in the agency’s denial of Chen’s application for asylum,
3
1 withholding of removal, and CAT relief. See Paul v. Gonzales,
2 444 F.3d 148, 156-57 (2d Cir. 2006).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
10 34.1(b).1
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
1
We note our concern with the poor quality of the brief filed by
Chen’s counsel, Tina Howe. The brief contained a number of
substantive, grammatical, and typographical errors, including: (1)
quoting a Third Circuit case, Yun Jun Cao v. Att’y Gen. of the U.S.,
but attributing the quotation to a Second Circuit case with a similar
name, Cao He Lin v. U.S. Dep’t of Justice, see Petitioner’s Brief
(“PB”) at 16-17; (2) copying and pasting irrelevant text into the
brief relating to Falun Gong, although this case concerned a claim
based only on Christianity, see id. at 17-18; (3) providing incorrect
pin cites to the record and cited cases, see id. at 7, 11, 14, 16-17;
and (4) listing cases in the table of contents that are not
subsequently cited in the text, and vice-versa, see id. at 3, 14, 16
(citing I.N.S. v. Elias-Zacarias; N.L.R.B. v. Columbian Enameling and
Stamping Co.; Bandari v. I.N.S.; Rizal v. Gonzales; and Li v.
Mukasey). Since Howe has already been warned about her deficient
briefing, see, e.g., Mei Juan Lin v. U.S. Att’y Gen., No. 07-4525-ag;
Su Ying Wen v. U.S. Att’y Gen., No. 07-3915-ag, we refer the present
matter to this Court’s Grievance Panel.
4