Chen v. Lynch , 630 F. App'x 110 ( 2015 )

14-1111
Chen v. Lynch
BIA
Segal, IJ
A201 139 864
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.
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
4th day of December, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
PETER W. HALL,
Circuit Judges.
_____________________________________
RU CHEN,
Petitioner,
v. 14-1111
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dehai Zhang, New York, NY.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Cindy S. Ferrier,
Assistant Director; Kimberly A.
Burdge, 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 Ru Chen, a native and citizen of China, seeks
review of a March 27, 2014, decision of the BIA affirming an
August 28, 2012, 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 Ru
Chen, No. A201 139 864 (B.I.A. Mar. 27, 2014), aff’g No. A201
139 864 (Immig. Ct. N.Y.C. Aug. 28, 2012). 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
decision of the IJ as supplemented by the BIA.” Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
2
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
(2d Cir. 2008)(per curiam).
For asylum applications, like Chen’s, governed by the REAL
ID Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of her account, and inconsistencies in her
statements, “without regard to whether” they go “to the heart
of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
“We 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.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence
supports the IJ’s finding that Chen was not credible.
The IJ’s credibility determination was properly based on
the inconsistencies in Chen’s written application and testimony
regarding when she wrote and published articles for the
Democracy Party of China (”CDP”). Chen testified that she
wrote five articles for the CDP: four of them were written
3
between May 4, 2011 and April 1, 2012, and no date was given
for the fifth. But her application, which listed her articles
as a reason for her fear of persecution in China, was filed in
April 2011, before any of the articles were published. The IJ
gave Chen two opportunities to explain this discrepancy. Chen
gave varied responses, including that: she was nervous; a May
2011 date was a mistake by the people who posted the article
online; she wrote her first article in April 2011 and did not
know when it was published; the website on which some of the
articles were published had been hacked and thus the articles’
publication dates were not verifiable; and the articles were
posted by volunteers, so the time it took for articles to be
published varied. The agency was not required to credit these
explanations because the record makes it plausible that Chen
was simply suggesting various possible explanations, as opposed
to stating the actual reason for the discrepancy. See Majidi
v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Moreover,
Chen’s application stated that her articles were “published,”
not that publication was pending or forthcoming. As such, even
4
if an article had been written but not published in April 2011,
it would do little, if anything, to resolve the discrepancy.
Nor did Chen establish that the IJ should have done more
to develop the record. The two cases on which she relies are
not relevant here. First, Jin Shui Qiu v. Ashcroft, 329 F.3d
140, 156 (2d Cir. 2003), overruled on other grounds by Shi Liang
Lin v. U.S. Dep’t. of Justice, 494 F.3d 296 (2d Cir. 2007),
merely questions whether an IJ has a duty to assist counseled
applicants (like Chen) to develop their cases. The second, Zhi
Wei Pang v. Bureau of Citizenship and Immigration Services, 448
F.3d 102, 111 (2d Cir. 2006), held that an IJ had not fulfilled
this duty where the adverse credibility finding was based on
speculative discrepancies that the IJ could have resolved by
requesting explanation. Here, the discrepancies are not
speculative. Even if the CDP had trouble publishing Chen’s
first article, her application alleged publication of multiple
articles, and yet the dates she gave at her hearing post-dated
her application, thereby undermining the basis of her fear of
persecution.
5
Chen also appears to argue that the IJ violated her duty
to develop the record in rejecting Chen’s claim that a
photograph in one of the articles was sufficiently clear for
a viewer to identify Chen. Chen alleged that the Government
had a clearer copy, but did not present it to the IJ. Chen,
however, does not identify evidence of a clearer copy or
evidence that the IJ knew of such a copy. And in any event,
the IJ’s credibility determination was not based on the clarity
of the photograph.
The “totality of the circumstances” supports the IJ’s
decision because it cannot be said that “no reasonable fact
finder could make such an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167. The discrepancies relate to the sole
basis for Chen’s fear of future persecution, her contention that
she has engaged in pro-democracy activities in the United States
that will put her at risk of persecution for her political
opinion. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d
289, 295 (2d Cir. 2006) (holding that an “inconsistency afforded
substantial evidence to support the adverse credibility
finding” where it was “‘a material inconsistency in an aspect
6
of [petitioner’s] story that served as an example of the very
persecution from which he sought asylum’” (quoting Majidi, 430
F.3d at 80)). Because all of Chen’s claims share the same
factual predicate, the adverse credibility determination is
dispositive of Chen’s claims for asylum, withholding of
removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148, 156-57
(2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
7