Chen v. Garland ( 2022 )

19-4080
Chen v. Garland
BIA
Poczter, IJ
A208 603 112
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 7th day of July, two thousand twenty-two.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
MICHAEL H. PARK,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
YONGXING CHEN,
Petitioner,
v. 19-4080
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Richard Tarzia, Law Office of
Richard Tarzia, Belle Mead, New
Jersey.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting
Assistant Attorney General;
Anthony C. Payne , Assistant
Director; Jennifer A. Bowen, Trial
Attorney, Office of Immigration
Litigation, Civil Division, 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 Yongxing Chen, a native and citizen of the
People’s Republic of China, seeks review of a November 22,
2019 decision of the BIA dismissing his appeal of a March 22,
2018 decision of an Immigration Judge (“IJ”) denying asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”). In re Yongxing Chen, No. A208 603
112 (B.I.A. Nov. 22, 2019), dismissing appeal, No. A208 603
112 (Immigr. Ct. N.Y.C. Mar. 22, 2018). We assume the
parties’ familiarity with the underlying facts and procedural
history.
As an initial matter, Chen’s challenge to the agency’s
jurisdiction on the ground that his notice to appear omitted
his hearing date and time is foreclosed because he received
a subsequent hearing notice specifying this information and
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appeared at his hearings. See Banegas Gomez v. Barr, 922
F.3d 101, 112 (2d Cir. 2019) (“We conclude that an NTA that
omits information regarding the time and date of the initial
removal hearing is nevertheless adequate to vest jurisdiction
in the Immigration Court, at least so long as a notice of
hearing specifying this information is later sent . . . .”);
see also Chery v. Garland, 16 F.4th 980, 987 (2d Cir. 2021)
(per curiam) (reaffirming the jurisdictional holding of
Banegas Gomez).
Accordingly, we address the agency’s decisions and review
the IJ’s decision as modified and supplemented by the BIA.
See Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006); Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). When,
as is the case here, “the BIA agrees with an IJ’s adverse
credibility determination and adopts particular parts of the
IJ’s reasoning, we review the decisions of both the BIA and
the IJ.” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
2018) (quoting Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d
Cir. 2008) (per curiam)). “Our review of the IJ’s decision
includes the portions not explicitly discussed by the BIA,
but not those grounds explicitly rejected by the BIA.” Id.
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(alterations, citations, and internal quotation marks
omitted).
“We review the agency’s factual findings, including
adverse credibility findings, under the substantial evidence
standard, which requires that they be supported by
reasonable, substantial and probative evidence in the record
when considered as a whole.” Id. (internal quotation marks
omitted). An alien challenging an adverse credibility
finding “bears a particularly heavy burden” under the
substantial evidence standard, “which — absent some legal
error — requires us to ‘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.’” Likai Gao v. Barr, 968 F.3d
137, 144 (2d Cir. 2020) (quoting Hong Fei Gao, 891 F.3d at 76
(ellipsis omitted)); see also 8 U.S.C. § 1252(b)(4)(B)
(“[T]he administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to
the contrary.”). “When an IJ or BIA decision contains
errors, ‘we may nevertheless deem remand futile and deny the
petition for review if (1) substantial evidence in the record
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relied on by the IJ, considered in the aggregate, supports
the IJ’s finding that petitioner lacked credibility, and (2)
disregarding those aspects of the IJ’s reasoning that are
tainted by error, we can state with confidence that the IJ
would adhere to his decision were the petition remanded.’”
Lianping Li v. Lynch, 839 F.3d 144, 149 (2d Cir. 2016) (per
curiam) (quoting Siewe v. Gonzales, 480 F.3d 160, 166–67 (2d
Cir. 2007)).
The REAL ID Act of 2005, Pub L. No. 109-13, 119 Stat.
302 (2005), provides that an asylum applicant bears the burden
of satisfying the trier of fact that his testimony is
credible. See 8 U.S.C. § 1158(b)(1)(B)(i),(ii). “[A]n
agency assessing credibility may itself properly consider the
totality of the circumstances, including the candor and
responsiveness of the applicant, the inherent plausibility of
his account, his demeanor while testifying, and the
consistency of his account, both internally and as compared
with other evidence, ‘without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim.’” Likai Gao, 968 F.3d at 144–45
(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).
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Under the REAL ID Act, “an IJ may rely on any
inconsistency or omission in making an adverse credibility
determination as long as the ‘totality of the circumstances’
establishes that an asylum applicant is not credible.” Xiu
Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)). “[A]lthough IJs may rely on non-
material omissions and inconsistencies, not all omissions and
inconsistencies will deserve the same weight.” Hong Fei Gao,
891 F.3d at 77. “In the immigration context, in assessing
the probative value of the omission of certain facts, an IJ
should consider whether those facts are ones that a credible
petitioner would reasonably have been expected to disclose
under the relevant circumstances.” Id. at 78–79.
Furthermore, “an omission by a third party may form a basis
for an adverse credibility determination,” but “where a third
party’s omission creates no inconsistency with an applicant’s
own statements[,] . . . an applicant’s failure to explain
third-party omissions is less probative of credibility than
an applicant’s failure to explain his or her own omissions.”
Id. at 81.
Here, the IJ concluded that Chen was not credible based
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on the totality of the circumstances, including his demeanor
and responsiveness. 1 In making this adverse credibility
determination, the IJ relied on omissions — in Chen's written
materials, a letter from his father, and a letter from his
wife — of facts regarding visits by the police to Chen’s home
in China, the religious beliefs of his wife and brother, and
his brother’s past persecution on the basis of his religion,
as well as Chen’s characterization of his introduction to
Christianity. Moreover, the IJ found, and the BIA agreed,
that Chen’s corroborative evidence did not sufficiently
rehabilitate the discredited testimony or independently
fulfill his burden of proof, a conclusion that Chen does not
directly challenge on appeal. Under the deferential standard
of review for these determinations, we cannot conclude that
“no reasonable fact-finder could make such an adverse
credibility ruling,” Hong Fei Gao, 891 F.3d at 76 (internal
quotation marks omitted), and accordingly we deny Chen’s
petition.
First, the IJ found that although Chen testified for the
1 The IJ found Chen’s sister, who testified at his hearing,
credible but determined that her testimony could not cure the
deficiencies in Chen’s testimony.
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first time on cross-examination that the Chinese police
visited his family’s home two times in 2017 to check if he
was there, he did not add this information to his application
or written statement in the course of making other updates to
those materials, which were filed in 2016. The IJ also
remarked that Chen did not mention in his written statement
that his wife, brother, and sister became Christians or that
his brother was persecuted in China on the basis of his
religion. As the BIA noted, Chen did indeed mention these
facts regarding his wife and siblings in his application,
albeit without further detail. We acknowledge that “asylum
applicants are not required to list every incident of
persecution on their I-589 statements.” Lianping Li, 839
F.3d at 150 (quoting Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.
2006)). Nonetheless, we conclude that the IJ reasonably
relied on these omissions in making the adverse credibility
finding given that these facts constitute the type of
information “that a credible petitioner would reasonably have
been expected to disclose,” Hong Fei Gao, 891 F.3d at 79,
especially while making other updates to his materials.
In addition, the IJ cited omissions in letters from
8
Chen’s wife and father: specifically, that neither his wife
nor his father updated their letters to include information
about the two police visits in 2017, that his wife’s letter
did not mention that she is a Christian, and that his father’s
letter did not mention Chen’s brother’s persecution on the
basis of his religion. While an applicant’s failure to
account for third-party omissions is “less probative of
credibility than an applicant’s failure to explain his or her
own omissions,” id. at 81, we conclude that the IJ properly
relied on these material omissions as part of her
consideration of the record as a whole and under the REAL ID
Act’s provision that “an IJ may rely on any inconsistency or
omission in making an adverse credibility determination,” Xiu
Xia Lin, 534 F.3d at 167.
Finally, the IJ found an inconsistency between Chen’s
claim in his written statement that a co-worker introduced
him to Christianity in 2015 and his testimony that his brother
had mentioned Christianity to him in 2007 and asked him to go
to church. Assuming arguendo that we agree with Chen’s
contention that his testimony was not in fact inconsistent,
we conclude that “the agency’s ultimate ruling . . . is
9
supported by substantial evidence” and that “the same
decision would be made on remand” in light of the
aforementioned omissions cited by the IJ. Lianping Li, 839
F.3d at 150. Accordingly, we discern no reason for remand
based on this alleged error.
Because we conclude that substantial evidence supported
the IJ’s adverse credibility determination, we need not
address the IJ’s alternative holding that Chen failed to meet
his burden to establish a well-founded fear of future
persecution. Furthermore, the IJ’s determination that Chen
was not credible is dispositive of Chen’s claims for asylum
and withholding of removal because they are based on the same
factual predicate. 2 See Hong Fei Gao, 891 F.3d at 76 (“Where
the same factual predicate underlies a petitioner’s claims
for asylum, withholding of removal, and protection under the
CAT, an adverse credibility determination forecloses all
three forms of relief.”).
2 Chen did not appeal the IJ’s denial of his request for CAT relief
to the BIA and does not raise the issue in this appeal.
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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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