Xiaofeng Chen v. Holder

11-1630-ag
Chen v. Holder
BIA
Weisel, IJ
A088 782 874
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9th day of February, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
XIAOFENG CHEN,
Petitioner,
v. 11-1630-ag
NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: John Z. Zhang, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; M. Jocelyn Lopez Wright,
Senior Litigation Counsel; Melissa
K. Lott, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Xiaofeng Chen, a native and citizen of the People’s
Republic of China, seeks review of a April 21, 2011, order
of the BIA, affirming the April 8, 2009, decision of
Immigration Judge (“IJ”) Robert Weisel, which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re
Xiaofeng Chen, No. A088 782 874 (B.I.A. Apr. 21, 2011),
aff’g No. A088 782 874 (Immig. Ct. N.Y. City Apr. 8, 2009).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Because the BIA adopted and affirmed the IJ’s decision,
we review the two decisions in tandem. Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009). The “substantial
evidence” standard of review applies, Islam v. Gonzales, 469
F.3d 53, 55 (2d Cir. 2006), and we uphold the IJ’s factual
findings if the are supported by “reasonable, substantial
and probative evidence in the record.” Lin Zhong v. US
Dep’t of Justice, 480 F.3d 104, 116 (2d Cir. 2007) (internal
quotation marks omitted). See also 8 U.S.C. § 1252(b)(4)(B).
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For asylum applications governed by the REAL ID Act,
such as this one, the agency may, considering the totality
of the circumstances, base a credibility finding on an
asylum applicant’s demeanor, the plausibility of his or her
account, and inconsistencies in his or her statements,
without regard to whether they go “to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
Analyzed under the REAL ID Act, substantial evidence
supports the agency’s adverse credibility determination.
In finding Chen not credible, the agency reasonably
relied on inconsistencies between Chen’s testimony and that
of her witness with regard to the date on which Chen joined
the China Democratic Party (“CDP”) in the United States,
whether Chen authored an article that was published on the
CDP’s website in July 2007, the frequency of visits from
Chinese officials to Chen’s family’s home in China, and the
stated purpose of a March 2009 political demonstration in
which Chen participated on behalf of the CDP. Although Chen
argues that these inconsistencies were too minor to support
an adverse credibility determination, “an IJ may rely on any
inconsistency or omission in making an adverse credibility
determination as long as the ‘totality of the circumstances’
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establishes that an asylum applicant is not credible.” Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008)(emphasis in original).
Furthermore, Chen’s argument that the IJ erred in
failing to solicit an explanation for the inconsistencies
between her testimony and that of her witness is without
merit. While it is true that an IJ may not rest an adverse
credibility finding on a non-dramatic discrepancy without
first putting a petitioner on notice and offering an
opportunity to explain it, see Ming Shi Xue v. BIA, 439 F.3d
111, 125 (2d Cir. 2006), the agency need not give such
notice and opportunity where, as here, it relied on dramatic
discrepancies that went to the very heart of Chen’s claim
for asylum. Id. Indeed, as the agency reasonably found,
the discrepancies between Chen’s testimony and that of her
witness were not minor and did, in fact, relate to the heart
of her claim that she feared persecution if returned to
China on account of her CDP activities in the United States,
as they directly pertained to the date on which she became a
member of the CDP, and the extent of her involvement in
political activities that evinced her opposition to the
Chinese regime. Accordingly, the IJ was not required to
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specifically request an explanation for these
inconsistencies: where the “inconsistency is ‘dramatic’ or
obvious on its face . . . the petitioner can be assumed to
be aware-without being told-of the need to explain it.”
Ming Shi Xue, 439 F.3d at 122 n.13.
We therefore conclude that the IJ’s adverse credibility
determination is supported by substantial evidence. See Xiu
Xia Lin, 534 F.3d at 165-66. This determination is
dispositive of both Chen’s claims for asylum and withholding
of removal, as both claims are based on the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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