Chen v. Barr ( 2020 )

18-3412
Chen v. Barr
BIA
Poczter, IJ
A 206 895 272
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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 21st day of October, two thousand twenty.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 ZHIQIANG CHEN, AKA ZHI CHEN,
14 Petitioner,
15
16 v. 18-3412
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: John Chang, Esq., New York, NY.
24
25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
26 Assistant Attorney General;
27 Brianne Whelen Cohen, Senior
28 Litigation Counsel; Ashley Martin,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Zhiqiang Chen, a native and citizen of the
10 People’s Republic of China, seeks review of a November 5,
11 2018 decision of the BIA affirming a November 17, 2017
12 decision of an Immigration Judge (“IJ”) denying Chen’s
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Zhiqiang
15 Chen, No. A 206 895 272 (B.I.A. Nov. 5, 2018), aff’g No. A
16 206 895 272 (Immig. Ct. N.Y. City Nov. 17, 2017). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as modified by the BIA, i.e., minus the
21 findings the BIA declined to rely on. See Xue Hong Yang v.
22 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
23 Because Chen has not challenged the agency’s alternative
2
1 denial of his future persecution claim based on his practice
2 of Christianity in the United States, only the adverse
3 credibility determination as stated by the BIA is before us.
4 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir.
5 2005) (finding CAT claim abandoned where it was not argued in
6 petitioner’s brief). The applicable standards of review are
7 well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao
8 v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
9 credibility determination for substantial evidence).
10 “Considering the totality of the circumstances, and all
11 relevant factors, a trier of fact may base a credibility
12 determination on . . . the consistency between the applicant’s
13 . . . written and oral statements . . . , the internal
14 consistency of each such statement, [and] the consistency of
15 such statements with other evidence of record . . . without
16 regard to whether an inconsistency, inaccuracy, or falsehood
17 goes to the heart of the applicant’s claim, or any other
18 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
19 . . . to an IJ’s credibility determination unless, from the
20 totality of the circumstances, it is plain that no reasonable
21 fact-finder could make such an adverse credibility ruling.”
3
1 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
2 accord Hong Fei Gao, 891 F.3d at 76. We conclude that the
3 agency’s adverse credibility determination is supported by
4 substantial evidence.
5 Multiple inconsistencies provide substantial support for
6 the agency’s adverse credibility determination. Chen’s
7 testimony was inconsistent with his mother’s statement about
8 how many people came to their house to demolish their property
9 in June 2014, who called the police after this incident, the
10 name of the friend who introduced Chen to Christianity in
11 August 2014, and when the police raided Chen’s church. Taken
12 together, these inconsistencies constitute substantial
13 evidence for the agency’s conclusion that Chen was not
14 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
15 534 F.3d at 167 (permitting consideration of discrepancies
16 between the petitioner’s testimony and letters from third
17 parties). The IJ was not compelled to accept Chen’s shifting
18 explanations for these discrepancies. See Majidi v.
19 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
20 do more than offer a plausible explanation for his
21 inconsistent statements to secure relief; he must demonstrate
4
1 that a reasonable fact-finder would be compelled to credit
2 his testimony.” (internal quotation marks omitted)).
3 The agency also properly relied on Chen’s omission from
4 his asylum application of a second beating by the village
5 officials who destroyed his property. In his asylum
6 application, Chen identified only one beating by the village
7 officials who allegedly destroyed his property. But he later
8 testified that the same men beat him a second time two days
9 later, prompting his mother to call the police again. His
10 explanation that he thought mentioning only one beating was
11 “enough” in his statement is not persuasive, Certified
12 Administrative Record (“CAR”) at 116, particularly given the
13 detailed written statement he attached to his application,
14 see Majidi, 430 F.3d at 80. We find no error in the agency’s
15 reliance on this omission because it was a physical assault
16 that was central to both his past harm and the motivation for
17 his practice of Christianity. See Ming Zhang v. Holder, 585
18 F.3d 715, 726 (2d Cir. 2009) (holding that the agency may
19 “draw an adverse inference about petitioner’s credibility
20 based, inter alia, on h[is] failure to mention” important
21 details or events in prior statements); see also Hong Fei
5
1 Gao, 891 F.3d at 78 (“[T]he probative value of a witness’s
2 prior silence on particular facts depends on whether those
3 facts are ones the witness would reasonably have been expected
4 to disclose.”).
5 Having questioned Chen’s credibility, the agency
6 reasonably relied on his failure to rehabilitate his
7 testimony with reliable corroborating evidence. See Biao
8 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
9 applicant’s failure to corroborate his or her testimony may
10 bear on credibility, because the absence of corroboration in
11 general makes an applicant unable to rehabilitate testimony
12 that has already been called into question.”). The agency
13 did not err in declining to afford significant weight to
14 letters from Chen’s friend and mother because his mother was
15 an interested witness and her letter was inconsistent with
16 Chen’s statements, and both authors were not available for
17 cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332,
18 334 (2d Cir. 2013) (holding that weight of evidence is within
19 agency discretion and deferring to agency’s decision to
20 afford little weight to spouse’s letter because it was unsworn
21 and from an interested witness); see also In re H-L-H- & Z-
6
1 Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that
2 unsworn letters from alien’s friends and family were
3 insufficient to provide substantial support for alien’s
4 claims because they were from interested witnesses not
5 subject to cross-examination), overruled on other grounds by
6 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
7 Chen devotes most of his brief to arguing that a
8 September 2014 arrest warrant from the Chinese police
9 corroborates that he was in fact arrested in September 2014
10 after the police raided his church and thus rehabilitates his
11 testimony. However, the warrant, which the agency
12 considered, does not resolve the other substantial
13 discrepancies between Chen’s testimony and his mother’s
14 letter – including, but not limited to, the date of Chen’s
15 arrest - and the agency has broad discretion in the weight it
16 affords to documents. See Y.C., 741 F.3d at 332.
17 Accordingly, given the inconsistencies between Chen’s
18 and his mother’s statements and the omission from his
19 application, the adverse credibility determination is
20 supported by substantial evidence. See Xiu Xia Lin, 534 F.3d
21 at 165–66; see also Xian Tuan Ye v. Dep’t of Homeland Sec.,
7
1 446 F.3d 289, 295 (2d Cir. 2006) (holding that even a single
2 inconsistency is sufficient to support an adverse credibility
3 determination if it is material and relates to “an example of
4 the very persecution from which” the applicant seeks relief).
5 The adverse credibility determination is dispositive of
6 asylum, withholding of removal, and CAT relief because all
7 forms of relief were based on the same discredited factual
8 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
9 Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. All pending motions and applications are DENIED and
12 stays VACATED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe,
15 Clerk of Court
8