Chen v. Sessions ( 2018 )

16-1721
Chen v. Sessions
BIA
Poczter, IJ
A201 128 213
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 16th day of January, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 LE NAN CHEN,
14 Petitioner,
15
16 v. 16-1721
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Stuart Altman, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Keith I.
27 McManus, Assistant Director; Juria
28 L. Jones, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Le Nan Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a May 17, 2016,
7 decision of the BIA affirming a February 19, 2015, decision
8 of an Immigration Judge (“IJ”) denying Chen’s application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Le Nan Chen, No.
11 A201 128 213 (B.I.A. May 17, 2016), aff’g No. A201 128 213
12 (Immig. Ct. N.Y. City Feb. 19, 2015). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and BIA’s decisions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
19 review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu
20 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
2
1 The agency may, “[c]onsidering the totality of the
2 circumstances,” base an adverse credibility determination
3 on an applicant’s “demeanor, candor, or responsiveness,” as
4 well as inconsistencies in an applicant’s statements,
5 between an applicant’s and witness’s testimony, or between
6 an applicant’s testimony and other record evidence,
7 regardless of whether any such discrepancies “go[] to the
8 heart of the applicant’s claim.” 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
10 defer . . . to an IJ’s credibility determination unless
11 . . . it is plain that no reasonable fact-finder could make
12 such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
13 at 167.
14 Two material inconsistencies regarding Chen’s practice
15 of Christianity in the United States provide substantial
16 evidence for the IJ’s adverse credibility determination.
17 Chen’s testimony that he had attended church every
18 Wednesday since December 2010 conflicted with a letter from
19 his church, which states that he had attended only 31 to 35
20 times between January 2011 and August 2013. The IJ
21 reasonably declined to credit Chen’s explanation that he
3
1 sometimes forgot to sign in because it contradicted his
2 prior testimony that he signed in every time he attended
3 church. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
4 2005) (“A petitioner must do more than offer a plausible
5 explanation for his inconsistent statements to secure
6 relief; he must demonstrate that a reasonable fact-finder
7 would be compelled to credit his testimony.” (quotation
8 marks omitted)).
9 Additionally, while Chen testified that he met his church
10 witness in the summer of 2011, Chen’s witness testified that
11 he met Chen in the summer of 2013. Chen gave no explanation
12 for this two-year discrepancy. Particularly when considered
13 together, these inconsistencies about the length and
14 frequency of Chen’s church attendance in the United States
15 undermine his claim that he is a practicing Christian. In
16 turn, the lack of credibility about that fact calls into
17 question whether Chen was a practicing Christian in China and
18 whether he suffered persecution on account of that practice.
19 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A]
20 single false document or a single instance of false testimony
4
1 may (if attributable to petitioner) infect the balance of the
2 alien’s uncorroborated or unauthenticated evidence.”).
3 The adverse credibility determination is further
4 bolstered by the IJ’s demeanor finding, to which we defer.
5 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d
6 Cir. 2005); see also Li Hua Lin v. U.S. Dep’t of Justice,
7 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still more
8 confident in our review of observations about an
9 applicant’s demeanor where, as here, they are supported by
10 specific examples of inconsistent testimony.”).
11 These material inconsistencies relating to Chen’s
12 practice of Christianity, as well as the IJ’s demeanor
13 finding, provide substantial evidence for the adverse
14 credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii).
15 Because Chen’s claims were all based on the same factual
16 predicate, the adverse credibility determination is
17 dispositive of asylum, withholding of removal, and CAT
18 relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
19 2006).
20
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6