Zeng Nong Chen v. Holder , 531 F. App'x 74 ( 2013 )

11-5245
Chen v. Holder
BIA
Nelson, IJ
A089 918 955
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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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 15th day of August, two thousand thirteen.
PRESENT:
DENNIS JACOBS,
Chief Judge,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
ZENG NONG CHEN,
Petitioner,
v. 11-5245
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Benjamin B. Xue, Law Offices of
Benjamin B. Xue, P.C., New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Eric Warren Marsteller,
Senior Litigation Counsel; Daniel
Eric Goldman, 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.
Petitioner Zeng Nong Chen, a native and citizen of
China, seeks review of a November 28, 2011, order of the
BIA, affirming the May 5, 2010, decision of an Immigration
Judge (“IJ”), pretermitting his application for asylum, and
denying withholding of removal and relief under the
Convention Against Torture (“CAT”).1 In re Zeng Nong Chen,
No. A089 918 955 (B.I.A. Nov. 28, 2011), aff’g No. A089 918
955 (Immig. Ct. N.Y. City May 5, 2010). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, 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
substantial evidence standard of review applies and we
uphold the IJ's factual findings if they are supported by
1
Chen does not challenge the IJ’s denial of this CAT
claim.
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reasonable, substantial and probative evidence in the
record.” Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
2009) (citation and internal quotation marks omitted). For
asylum applications such as Chen’s, governed by the
amendments made to the Immigration and Nationality Act by
the REAL ID Act of 2005, the agency may, “[c]onsidering the
totality of the circumstances . . . base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant,” or any inconsistency or omission in the
applicant’s statements, “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163 (2d Cir.
2008) (same).
Chen challenges the agency’s adverse credibility
determination. However, the agency, in making its
determination, reasonably relied on the inherent
implausibility of Chen’s claim that, following a police raid
on his regular Falun Gong practice group in front of a
friend’s house, in which Chen narrowly escaped arrest, the
group relocated to a public park to continue their Falun
Gong practice, despite Chen’s fear of arrest. See Xiao Ji
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Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.16 (2d
Cir. 2006) (upholding an implausibility finding as to a
petitioner’s claim that she went into hiding to avoid
officials and yet continued working in a location where the
officials were likely to find her). Because the IJ’s
implausibility finding was based on the record, we cannot
conclude that a reasonable adjudicator would be compelled to
find otherwise. See Siewe v. Gonzales, 480 F.3d 160, 168-69
(2d Cir. 2007) (noting that, while “bald” speculation is an
impermissible basis for an adverse credibility finding,
“[t]he speculation that inheres in inference is not ‘bald’
if the inference is made available to the factfinder by
record facts, or even a single fact, viewed in the light of
common sense and ordinary experience”); Wensheng Yan v.
Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (holding that if
“the reasons for the [IJ’s] incredulity are evident,” the
implausibility finding is supported by substantial
evidence).
The agency also reasonably relied, in part, on Chen’s
demeanor in finding him not credible, noting that while he
was initially forthright in answering questions, he later
hesitated for long periods before answering questions, gave
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unresponsive answers, or gave no answer at all. Because
demeanor is “virtually always evaluated subjectively and
intuitively,” an IJ’s assessment of an applicant’s demeanor
merits “great deference.” Tu Lin v. Gonzales, 446 F.3d 395,
400 (2d Cir. 2006); see also Shu Wen Sun v. BIA, 510 F.3d
377, 381 (2d Cir. 2007) (noting that an IJ, as a first-hand
observer, is best situated to assess demeanor). This is
especially true when, as here, the agency has identified
other testimonial bases for its credibility determination.
See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109
(2d Cir. 2006) (“We can be still more confident in our
review of observations about an applicant’s demeanor
where . . . they are supported by specific examples of
inconsistent testimony.”).
The agency found that Chen’s failure to provide
sufficient objective corroborative evidence further
undermined his credibility. 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.”). Though Chen submitted letters
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from his mother and from a friend, Jing Rong Shi, the agency
reasonably accorded minimal weight to this evidence because
the letters were unsworn and prepared by interested parties
who could not be cross-examined. See Xiao Ji Chen, 471 F.3d
at 342 (finding that the weight accorded to an applicant’s
evidence lies largely within the discretion of the agency).
In light of the demeanor, implausibility, and
corroboration findings, the agency’s adverse credibility
determination is supported by substantial evidence, and
provided a valid basis for the denial of withholding of
removal. See Xiu Xia Lin, 534 F.3d at 167.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Petitioner’s
motions for a stay of removal are DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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