Jian Chen v. Holder

09-3371-ag
Chen v. Holder
BIA
Nelson, IJ
A094 800 150
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 22 nd day of June, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 JIAN CHEN,
15 Petitioner,
16
17 v. 09-3371-ag
18 NAC
19 ERIC H. HOLDER, Jr., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Henry Zhang, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Shelley R. Goad, Assistant
28 Director, Dalin R. Holyoak, Trial
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Jian Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a July 31, 2009,
7 order of the BIA affirming the December 5, 2007, decision of
8 Immigration Judge (“IJ”) Barbara A. Nelson, denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Jian
11 Chen, No. A094 800 150 (B.I.A. July 31, 2009), aff’g No.
12 A094 800 150 (Immig. Ct. N.Y. City Dec. 5, 2007). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we review both
16 the BIA’s and IJ’s opinions. See Xue Hong Yang v. U.S.
17 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009).
21 Substantial evidence supports the agency’s adverse
22 credibility determination. As the IJ noted: (1) Chen failed
23 to assert, either in his credible fear interviews or his
2
1 first supplemental statement, that he had a physical
2 altercation with public security officials and that one of
3 the officials was injured; and (2) Chen testified that he
4 received medical treatment at his home, but a letter from
5 his mother made no such assertion. The agency was entitled
6 to rely on these inconsistencies to find Chen not credible.
7 See 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v.
8 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Additionally,
9 there is no merit to Chen’s claim that the IJ failed to
10 provide him an opportunity to explain those discrepancies.
11 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
12 The IJ also reasonably found that several aspects of
13 Chen’s testimony were implausible. For example, Chen
14 claimed that after he was beaten unconscious for a day, he
15 walked half an hour to the hospital to visit his girlfriend.
16 Additionally, Chen testified that upon seeing him bandaged,
17 his girlfriend had no reaction to his injuries. While Chen
18 offers explanations as to why his testimony was not
19 implausible, such explanations – even if rational – “do not
20 defeat a finding that the account is implausible.” See Ying
21 Li v. BCIS, 529 F.3d 79, 83 (2d Cir. 2008).
22 Moreover, there is no merit to Chen’s argument that his
23 proceedings were fundamentally unfair. To the contrary, the
3
1 IJ afforded Chen a meaningful opportunity to be heard. Li
2 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d
3 Cir. 2006). The IJ has broad discretion to determine the
4 scope of questions asked on redirect, see United States v.
5 Diaz, 176 F.3d 52, 80 (2d Cir. 1999), and Chen failed to
6 demonstrate how the IJ’s limitation of his testimony
7 prejudiced the outcome of his case, see Garcia-Villeda v.
8 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).
9 Accordingly, considering the totality of the
10 circumstances and all relevant factors, the IJ’s adverse
11 credibility determination was supported by substantial
12 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). Since the
13 only evidence of a threat to Chen’s life or freedom depended
14 upon his credibility, the adverse credibility determination
15 in this case necessarily precludes success on his claims for
16 asylum and withholding of removal. See Paul v. Gonzales,
17 444 F.3d 148, 156 (2d Cir. 2006). Finally, we lack
18 jurisdiction to consider Chen’s unexhausted challenge to the
19 IJ’s denial of his CAT claim. See 8 U.S.C. § 1252(d)(1).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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