De en Chen v. Lynch

15-334
Chen v. Lynch
BIA
Poczter, IJ
A201 295 292
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 8th day of July, two thousand sixteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 DE EN CHEN,
14 Petitioner,
15
16 v. 15-334
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Zhou Min Wang, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Cindy S.
28 Ferrier, Assistant Director;
29 Lindsay M. Murphy, Trial Attorney,
1 Office of Immigration Litigation,
2 United 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 is
8 DENIED.
9 Petitioner De En Chen, a native and citizen of the People’s
10 Republic of China, seeks review of a January 26, 2015 decision
11 of the BIA affirming a July 8, 2013 decision of an Immigration
12 Judge (“IJ”) denying Chen’s application for asylum, withholding
13 of removal, and relief under the Convention Against Torture
14 (“CAT”). In re De En Chen, No. A201 295 292 (B.I.A. Jan. 26,
15 2015), aff’g No. A201 295 292 (Immig. Ct. N.Y. City July 8,
16 2013). We assume the parties’ familiarity with the underlying
17 facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed both
19 the IJ’s and the BIA’s opinions “for the sake of completeness.”
20 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
21 2006). The applicable standards of review are well
22 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
23 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
24 “[c]onsidering the totality of the circumstances, . . . base
2
1 a credibility determination on the demeanor, candor, or
2 responsiveness of the applicant,” and on inconsistencies in the
3 record evidence “without regard to whether” those
4 inconsistencies go “to the heart of the applicant’s claim.”
5 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64
6 & n.2. Substantial evidence supports the agency’s adverse
7 credibility determination.
8 The IJ reasonably relied on Chen’s demeanor, noting that
9 he was evasive and hesitant while testifying. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 77,
11 81 n.1 (2d Cir. 2005). That finding is supported by the record.
12 The IJ’s demeanor finding and the overall credibility
13 determination are bolstered by record inconsistencies
14 regarding when Chen’s church was raided in China, whether the
15 Chinese church that issued his baptism certificate is a
16 government-sanctioned church, and how often he attends church
17 in the United States. See Li Hua Lin v. U.S. Dep’t of Justice,
18 453 F.3d 99, 109 (2d Cir. 2006); see also Xiu Xia Lin, 534 F.3d
19 at 165-67. In addition, Chen omitted any mention of the
20 incidents that form the bases for his claims during his credible
21 fear interview although he discussed incidents of harm suffered
22 by his family members and asserted a personal fear of harm. See
3
1 Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an
2 omission are . . . functionally equivalent.”); cf. Ming Zhang
3 v. Holder, 585 F.3d 715, 724-25 (2d Cir. 2009). Chen did not
4 provide compelling explanations for these inconsistencies.
5 See Majidi, 430 F.3d at 80.
6 Having questioned Chen’s credibility, the agency
7 reasonably relied further on his failure to submit
8 corroborating evidence sufficient to rehabilitate his
9 testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
10 Cir. 2007).
11 Given the demeanor, inconsistency, and lack of
12 corroboration findings, the agency’s adverse credibility
13 determination is supported by substantial evidence. 8 U.S.C.
14 § 1158(b)(1)(B)(iii). That finding is dispositive of Chen’s
15 claims for asylum, withholding of removal, and CAT relief. See
16 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
17 For the foregoing reasons, the petition for review is
18 DENIED.
19 FOR THE COURT:
20 Catherine O=Hagan Wolfe, Clerk
4