Chen v. Barr ( 2019 )

16-4184
Chen v. Barr
BIA
Morace, IJ
A206 364 827
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
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO 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 20th day of May, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROSEMARY S. POOLER,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
XUE FANG CHEN, AKA XUE-FANG
CHEN,
Petitioner,
v. 16-4184
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.1
_____________________________________
FOR PETITIONER: Ting Geng, Geng & Associates,
P.C., Flushing, NY.
1 William P. Barr is automatically substituted for former
Attorney General Jefferson B. Sessions III pursuant to
Federal Rule of Appellate Procedure 43(c)(2). The Clerk of
Court is directed to amend the caption accordingly.
FOR RESPONDENT: Chad A. Readler, Acting
Assistant Attorney General;
Bernard A. Joseph, Senior
Litigation Counsel; Kate D.
Balaban, 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 Xue Fang Chen, a native and citizen of the
People’s Republic of China, seeks review of a November 30,
2016, decision of the BIA affirming a January 27, 2016,
decision of an Immigration Judge (“IJ”) denying Chen’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Xue Fang
Chen, No. A206 364 827 (B.I.A. Nov. 30, 2016), aff’g No. A206
364 827 (Immig. Ct. N.Y.C. Jan. 27, 2016). We assume the
parties’ familiarity with the underlying facts and procedural
history.
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 applicable
standards of review are well established. See 8 U.S.C.
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§ 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d
Cir. 2008); Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d
149, 156 (2d Cir. 2005).
I. Past Persecution
The IJ concluded that Chen’s claim of past persecution
was not credible, and the BIA affirmed. In addressing
credibility, the agency must “[c]onsider[] the totality of
the circumstances” and may base a credibility finding on an
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of her account, and inconsistencies or omissions
in her or her witness’s statements. 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-
67. “We defer . . . to an IJ’s credibility determination
unless . . . it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Xiu Xia Lin, 534
F.3d at 167. For the reasons that follow, we conclude that
substantial evidence supported the IJ’s decision to reject
Chen’s past persecution claim on credibility grounds.
First, the agency reasonably relied on the omission of
alleged forced abortions from both Chen’s border patrol and
credible fear interviews. See Ming Zhang v. Holder, 585 F.3d
3
715, 724-25 (2d Cir. 2009) (observing that where the record
of a credible fear interview bears the hallmarks of
reliability, credibility determinations can account for
inconsistencies arising from credible fear interviews);
Ramsameachire v. Ashcroft, 357 F.3d 169, 179-81 (2d Cir. 2004)
(same for airport interviews). Although Chen testified that
she suffered forced abortions in 1998 and 2003, she did not
mention any issues with the family planning policy during her
initial interview at the border and mentioned only that
Chinese officials had forced her to use intrauterine devices
(“IUDs”) during her credible fear interview a few weeks later.
Chen challenges the use of her credible fear interview
on two grounds: first by arguing that the interviewer solely
questioned her about her forced use of IUDs and second by
arguing that evidence related to her credible fear interview
was untimely submitted to the court. The IJ was not required
to accept Chen’s explanation that the interviewer’s questions
caused her to focus on the forced use of IUDs and omit the
forced abortions. 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
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compelled to credit his testimony.” (internal quotation marks
omitted)). Chen was given an opportunity during her credible
fear interview to discuss harm beyond the IUDs, but she did
not do so. Nor can Chen’s challenge to the admission of the
border patrol interview succeed because the interview was
used at the hearing as impeachment evidence, which is not
subject to the filing deadline. Immig. Ct. Practice Manual
ch. 3.1(b)(ii)(A).
The credibility of the past persecution claim was
further undermined by inconsistencies among Chen’s
testimony, her husband’s testimony, and her husband’s
written statement concerning how her husband learned of her
second abortion. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64. Both Chen and her husband
testified that her husband came home to find her lying in
bed, but her husband’s written statement was that he picked
her up at the hospital. Chen’s husband twice changed his
testimony when confronted with this discrepancy. When
confronted with the written statement, he confirmed that he
picked Chen up at the hospital, but when confronted with
Chen’s testimony, he stated that he learned of Chen’s
second abortion when he found her at home. Chen’s post-
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hearing memorandum blamed these inconsistencies on her
husband’s mental illnesses and her attorney’s errors in
preparing her husband’s written statement; however, the IJ
did not err in declining to consider the arguments and
related evidence because Chen did not support her argument
that her attorney erred with corroborated evidence and the
evidence was submitted after the filing deadline. See
Immig. Ct. Practice Manual ch. 3.1(b)(ii)(A) (“For
individual calendar hearings involving non-detained aliens,
filings must be submitted at least fifteen (15) days in
advance of the hearing.”); Pretzantzin v. Holder, 736 F.3d
641, 651 (2d Cir. 2013) (“[T]he arguments of counsel are
not evidence.”). The BIA also correctly declined to
consider Chen’s submissions for the first time on appeal.
See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
296 (2d Cir. 2006) (“[T]he BIA may only review the IJ’s
factual findings to determine whether they are clearly
erroneous, and may not engage in fact-finding, other than
taking administrative notice of commonly known facts”); 8
C.F.R. § 1003.1(d)(3)(iv) (“The Board will not engage in
factfinding in the course of deciding appeals.”).
Last, the agency reasonably found Chen’s corroborating
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evidence insufficient to rehabilitate her credibility. 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.”).
Chen argues that the IJ should have given more weight to
her medical records from the United States, but the
resolution of conflicts in the record evidence is “a task
largely within the discretion of the agency.” Jian Hui Shao
v. Mukasey, 546 F.3d 138, 171 (2d Cir. 2008). As the IJ
found, those records were unauthenticated, and the doctors
who prepared them were not available for cross-examination.
Given the foregoing omission, inconsistency, and
corroboration findings, which call into question whether
Chen suffered any forced abortions, the adverse credibility
determination is supported by substantial evidence in light
of the “totality of the circumstances.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The
credibility determination is therefore dispositive of
Chen’s past persecution claim. See Paul v. Gonzales, 444
F.3d 148, 156-57 (2d Cir. 2006).
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II. Well-Founded Fear of Future Persecution
Absent past persecution, an applicant may establish
asylum eligibility by demonstrating a well-founded fear of
persecution, which is a “subjective fear that is
objectively reasonable.” Tambadou v. Gonzales, 446 F.3d
298, 302 (2d Cir. 2006); see 8 U.S.C. § 1101(a)(42);
8 C.F.R. § 1208.13(b)(2); see also Y.C. v. Holder, 741 F.3d
324, 332 (2d Cir. 2013) (“For an asylum claim, the
applicant must show a reasonable possibility of future
persecution.” (internal quotation marks omitted)). “In the
absence of solid support in the record,” a fear of
persecution is not well founded and “is speculative at
best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
Cir. 2005).
We conclude that the agency reasonably determined that
Chen failed to demonstrate a well-founded fear of future
persecution based on the birth of her second child in the
United States. See id. at 128-29. As the agency observed,
Chen failed to present evidence of enforcement of the
family planning policy in her home region of Fujian
Province, as required to show that her fear is objectively
reasonable; nor did she provide evidence establishing that
8
she would still face persecution despite China’s relaxation
of the one-child policy to allow all couples to have up to
two children. Jian Hui Shao, 546 F.3d at 149 (requiring
applicant to demonstrate that the family planning policy is
punished in her local area in a manner that gives rise to
an objectively reasonable fear of persecution given
variations in the enforcement of the policy between
localities); U.S. Dep’t of State, 2016 Country Report on
Human Rights Practices: China 54 (Bureau of Democracy,
Human Rights & Labor, U.S. Dep’t of State 2016),
https://www.state.gov/documents/organization/265540.pdf
(“On January 1, [2016,] the government raised the birth
limit imposed on its citizens from one to two children per
married couple, thereby ending the ‘one-child policy’ first
enacted in 1979.”). Accordingly, Chen failed to demonstrate
a well-founded fear of persecution, and the agency did not
err in denying asylum or in concluding that she necessarily
failed to meet the higher burdens for withholding of
removal and CAT relief because her claims for such relief
are predicated on the same set of facts as her asylum claim
is. Y.C., 741 F.3d at 335.
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III. Motion to Remand
“A motion to remand that relies on newly available
evidence is held to the substantive requirements of a
motion to reopen” and is reviewed for abuse of discretion.
Li Yong Cao, 421 F.3d at 156-57. A movant seeking remand
for consideration of new evidence must therefore present
“material, previously unavailable evidence” and satisfy
“the ‘heavy burden’ of demonstrating a likelihood that the
new evidence presented would alter the result in the case.”
Id. at 156.
The BIA did not abuse its discretion in declining to
remand because Chen’s new evidence would not likely change
the result of her case. First, Chen’s counsel’s affidavit
did not compellingly resolve Chen’s husband’s inconsistent
statements because a reasonable fact-finder could question
how an entirely different account of Chen’s husband
discovering the second forced abortion could result from a
typographical error, as Chen’s attorney suggested. See
Majidi, 430 F.3d at 80. Second, Chen’s medical records appear
to be duplicates of those submitted to the IJ. See Li Yong
Cao, 421 F.3d at 156 (requiring the evidence to have
previously been unavailable). Third, Chen’s additional
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background evidence did not suggest that she would be punished
in her home region of Fujian Province for the birth of her
second child in the United States. See Jian Hui Shao, 546
F.3d at 149. Last, Chen’s post-hearing evidence concerning
her husband’s mental health would not compel a reasonable
adjudicator to excuse his inconsistent testimony because he
had no prior history of mental illness and Chen previously
described her husband as stable. Majidi, 430 F.3d at 80.
For the foregoing reasons, Chen’s petition for review is
DENIED, and her pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
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