Cai Chen v. Holder , 474 F. App'x 815 ( 2012 )

11-834-ag
Chen v. Holder
BIA
Rohan, IJ
A089 200 684
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of April, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
_______________________________________
CAI CHEN,
Petitioner,
v. 11-834-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Eric Y. Zheng, Esq., New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Francis Fraser, Senior
Litigation Counsel; Kate D. Balaban,
Trial Attorney, Office of
Immigration Litigation, U.S.
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.
Petitioner Cai Chen, a native and citizen of China,
seeks review of the February 16, 2011 decision of the BIA
affirming the April 14, 2009 decision of Immigration Judge
(“IJ”) Patricia A. Rohan denying his application for asylum,
withholding of removal, and CAT relief. In re Cai Chen, No.
A089 200 684 (B.I.A. Feb. 16, 2011), aff’g No. A089 200 684
(Immig. Ct. N.Y.C. Apr. 14, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review both
the BIA’s and IJ’s opinions. See Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). 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); see 8
U.S.C. § 1252(b)(4)(B). For asylum applications, like
Chen’s, governed by the REAL ID Act, the agency may base a
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credibility finding on an asylum applicant’s demeanor, the
plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart
of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
accord Xiu Xia Lin, 534 F.3d at 163.
Substantial evidence supports the agency’s
determination that Chen did not testify credibly regarding
his claim that he faced persecution on account of his
membership in an underground church. In finding Chen not
credible, the agency reasonably relied on inconsistencies in
the record. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534 F.3d at 166-67. As the agency noted, Chen omitted from
his initial asylum application, and did not disclose to the
to the IJ until several weeks before his merits hearing,
that (1) two members of his underground church had been
arrested by Chinese authorities because of their religious
activities, and (2) Chen had previously entered the United
States in 2000 and had remained for approximately five
years. See Xiu Xia Lin, 534 F.3d at 166 n.3 (recognizing
that inconsistencies and omissions are functionally
equivalent in evaluating applicant’s credibility). Although
applicants are not required to include a “comprehensive
recitation” of their claims on an asylum application, Zhi
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Wei Pang v. Bureau of Citizenship & Immigration Servs., 448
F.3d 102, 112 (2d Cir. 2006) (internal quotation marks
omitted), and Chen asserted in his initial asylum
application that he knew “others attending house churches in
[his] area were arrested,” Administrative Record (“A.R.”)
339, the arrests of the two church members took place prior
to the filing of Chen’s application but were not brought to
the attention of the IJ until a few weeks before the merits
hearing. Additionally, while Chen argues in his brief that
the information regarding the arrests was submitted late
because a “letter confirming the details” was not received
“until less than three weeks before the hearing,” Pet’r’s
Br. 24, he testified at the April 2009 merits hearing that
he first learned of these arrests, which occurred in
February and April 2008, during an earlier “telephone
communication,” A.R. 100.
With respect to Chen’s proffered explanation for the
omission of his prior five-year stay in the United States,
his assertion that he was not a Christian during that period
may explain why he did not apply for asylum then, but it
does not explain why he failed to include that information
in his counseled 2008 asylum application, despite the
application’s explicit requirement that Chen list his prior
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entries into the United States. Given the above, a
reasonable fact finder would not have been compelled to
credit Chen's explanations for his omissions and
inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005) (finding that agency need not credit
applicant's explanations unless those explanations would
compel reasonable fact-finder to do so).
In light of Chen’s lack of credibility, it was not
error for the agency to require him to submit evidence
corroborating his assertions. 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.”). At the merits hearing, Chen
testified that he was diagnosed with cancer in 2005 at a New
York clinic and then returned to China where he underwent
surgery to remove a tumor. When asked by the IJ whether he
had any medical records confirming his diagnosis, Chen
replied that he did not have the records anymore and did not
remember the name of the New York clinic. Further, Chen’s
attorney stated that he did not “have a good explanation” as
to why Chen had not visited a free clinic in order to obtain
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“some sort of a record” confirming that Chen had surgery to
remove a tumor. A.R. 97. Where an applicant is not
otherwise credible, the agency need not find that missing
relevant evidence was reasonably available to the applicant
before relying on a lack of corroboration to support an
adverse credibility finding. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 341 (2d Cir. 2006). Accordingly,
the agency reasonably relied on Chen’s failure to present
corroborating evidence of his medical condition to support
its adverse credibility finding. See Biao Yang, 496 F.3d at
273.
Because the adverse credibility determination is
supported by substantial evidence, we find no error in the
agency’s denial of Chen’s application for asylum,
withholding of removal, and CAT relief, which were all based
on his purported membership in an underground church. See
Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
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Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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