Chun Chen v. Holder , 359 F. App'x 255 ( 2010 )

08-4278-ag
Chen v. Holder
BIA
Bukszpan, IJ
A200-024-889
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 8 th day of January, 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 CHUN CHEN,
15 Petitioner,
16
17 v. 08-4278-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Nathaniel K. Hsieh, Hsieh &
25 Associates, PC, Chicago, Illinois.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; M. Jocelyn Lopez-Wright,
3 Senior Litigation Counsel; Judith R.
4 O’Sullivan, Trial Attorney, Office
5 of Immigration Litigation, United
6 States Department of Justice, Civil
7 Division, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Chun Chen, a native and citizen of the
14 People’s Republic of China, seeks review of a July 30, 2008
15 order of the BIA affirming the July 30, 2007 decision of
16 Immigration Judge (“IJ”) Joanna Miller Bukszpan denying his
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Chun
19 Chen, No. A200-024-889 (B.I.A. July 30, 2008), aff’g No.
20 A200-024-889 (Immig. Ct. N.Y. City July 30, 2007). We
21 assume the parties’ familiarity with the underlying facts
22 and procedural history in this case.
23 When the BIA agrees with the IJ’s conclusion that a
24 petitioner is not credible and, without rejecting any of the
25 IJ’s grounds for decision, emphasizes particular aspects of
26 that decision, this Court reviews both the BIA’s and IJ’s
2
1 opinions -- or more precisely, the Court reviews the IJ’s
2 decision including the portions not explicitly discussed by
3 the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
4 Cir. 2005). We review the agency’s factual findings,
5 including adverse credibility findings, under the
6 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
7 see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
8 We review de novo questions of law and the application of
9 law to undisputed fact. See, e.g., Salimatou Bah v.
10 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
11 Substantial evidence supports the IJ’s adverse
12 credibility determination. See Corovic, 519 F.3d at 95.
13 The IJ cited: (1) inconsistencies between Chen’s testimony
14 and his cousin’s testimony regarding the date Chen last
15 practiced Falun Gong; (2) inconsistencies between his
16 testimony and his cousin’s testimony regarding where he
17 practiced Falun Gong; (3) inconsistencies between his
18 testimony and his cousin’s testimony regarding the apartment
19 they allegedly shared and the family members they lived
20 with; (4) inconsistencies between his testimony and his
21 written statement regarding the year in which he was
22 arrested; and (5) Chen’s lack of knowledge about the Falun
3
1 Gong flyers he allegedly posted. Chen’s brief argues that
2 several of these inconsistencies were too minor to support
3 an adverse credibility determination. However, under the
4 REAL ID Act, which applied to Chen’s application for relief,
5 “an IJ may rely on any inconsistency or omission in making
6 an adverse credibility determination as long as the
7 ‘totality of the circumstances’ establishes that an asylum
8 applicant is not credible.” Xiu Xia Lin v. Mukasey, 534
9 F.3d 162, 167 (2d Cir. 2008) (emphasis in original); see
10 Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007)
11 (finding that “the REAL ID Act no longer requires the trier
12 of fact to find a nexus between inconsistencies and the
13 ‘heart of the claim’”). Moreover, although Chen offered
14 explanations for these discrepancies before the agency, no
15 reasonable fact finder would have been compelled to credit
16 them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
17 2005).
18 Given the discrepancies the IJ identified, substantial
19 evidence supports the agency’s adverse credibility
20 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
21 Lin, 534 F.3d at 167. Therefore, the IJ properly denied
22 Chen’s application for asylum. The applications for
4
1 withholding of removal and CAT relief were also properly
2 denied because the only evidence that Chen would be
3 persecuted or tortured depended on his credibility. See
4 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
5 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
6 2005).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any pending motion
9 for a stay of removal in this petition is DISMISSED as moot.
10 Any pending request for oral argument in this petition is
11 DENIED in accordance with Federal Rule of Appellate
12 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
13
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18 By:___________________________
5