Chen v. Garland ( 2023 )

20-2131
Chen v. Garland
BIA
McCarthy, IJ
A205 034 120
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 30th day of January, two thousand twenty-
three.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
PIERRE N. LEVAL,
JOSÉ A. CABRANES,
Circuit Judges.
_____________________________________
QI YONG CHEN,
Petitioner,
v. 20-2131
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua Bardavid, New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General; Anthony C.
Payne, Assistant Director; Judith
R. O’Sullivan, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
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.
Petitioner Qi Yong Chen, a native and citizen of the
People’s Republic of China, seeks review of a June 2, 2020,
decision of the BIA affirming a March 29, 2018, decision of
an Immigration Judge (“IJ”) denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Qi Yong Chen, No.
A 205 034 120 (B.I.A. June 2, 2020), aff’g No. A 205 034 120
(Immig. Ct. N.Y. City Mar. 29, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed the IJ’s decision as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B) (providing that
“the administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to
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the contrary”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
Cir. 2018) (reviewing adverse credibility determination under
a substantial evidence standard).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant or witness” and on inconsistencies within and
between an applicant’s statements and other evidence,
“without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or any
other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008); accord Hong Fei Gao, 891 F.3d at 76. Here, we conclude
that substantial evidence supports the agency’s adverse
credibility determination.
In his asylum application, Chen alleged that police twice
raided the family church he attended in China, beating him
and his grandmother in 2009, and arresting, detaining, and
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torturing him for a week in 2010. At the hearing, however,
he initially omitted any mention of the 2009 incident and
answered affirmatively when asked if his 2010 arrest was the
only incident of physical abuse. This represented a
significant inconsistency between Chen’s testimony and his
application and one on which the agency reasonably relied.
See 8 U.S.C. § 1158(b)(1)(B)(iii). Chen failed to adequately
address this inconsistency when confronted about it, stating
only that he was nervous and had trouble speaking. See Majidi
v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
must do more than offer a plausible explanation for his
inconsistent statements to secure relief; he must demonstrate
that a reasonable fact-finder would be compelled to credit
his testimony.” (quotation marks omitted)).
Chen also offered inconsistent testimony on the date of
his release from detention, expressing some ambiguity as to
whether he was released on April 25, 2010 (the same day he
was allegedly first detained) or May 2, 2010. While this
inconsistency may be explained as a mere misstatement or
having resulted from confusion, a reasonable fact-finder
would not be compelled to view it as such and, accordingly,
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the agency did not err in considering it as part of its
broader credibility determination. Id.The agency also reasonably relied on inconsistencies and
the lack of corroboration regarding Chen’s claimed practice
of Christianity in the United States. See Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
failure to corroborate his or her testimony may bear on
credibility, because the absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question.”). As the agency noted,
although Chen submitted a certificate of baptism dated 2011
from the Brooklyn Christian Congregation, he testified that
he began to attend church at the Church of Grace for Fujianese
in 2012 and did not testify that he had attended any other
church earlier while in the United States. Additionally,
though he testified that he attended church once or twice a
month, he submitted letters allegedly from fellow
practitioners stating that Chen attended every week. The
agency reasonably found these discrepancies to undermine
Chen’s credibility. Moreover, the agency was not required
to credit the undated and unsigned letter from Chen’s
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grandmother. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
2013) (upholding BIA’s decision to afford “very little
evidentiary weight” to letter from applicant’s spouse in
China “because it was unsworn and because it was submitted by
an interested witness”).
The inconsistencies, which relate to both the alleged
harm and Chen’s practice of Christianity, as well as the lack
of reliable corroboration, provide substantial evidence for
the adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
Accordingly, we need not address Chen’s argument that the BIA
erred in finding inconsistencies between his testimony and a
medical record as well as a “certificate of detention,”
respectively. See Lianping Li v. Lynch, 839 F.3d 144, 149
(2d Cir. 2016) (holding that “we may . . . deem remand futile
and deny the petition for review if . . . substantial evidence
in the record relied on by the IJ, considered in the
aggregate, supports the IJ’s finding that petitioner lacked
credibility” (quotation marks omitted)). The adverse
credibility determination is dispositive of asylum,
withholding of removal and CAT relief because all three forms
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of relief were based on the same factual predicate. See Paul
v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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