Chen v. Barr ( 2019 )

17-2340
Chen v. Barr
BIA
Wright, IJ
A206 071 811
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 29th day of October, two thousand nineteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 YING CHEN,
14
15 Petitioner,
16
17 v. 17-2340
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Gary J. Yerman, New York, NY.
26
27 FOR RESPONDENT: Chad A. Readler, Acting Assistant
28 Attorney General; Carly McIntyre,
1 Assistant Director; Nancy E.
2 Friedman, Senior Litigation
3 Counsel, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DISMISSED in part, and DENIED in part.
12 Petitioner Ying Chen, a native and citizen of China,
13 seeks review of a July 12, 2017, decision of the BIA affirming
14 an October 6, 2016, decision of an Immigration Judge (“IJ”)
15 denying asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Ying Chen, No.
17 A206 071 811 (B.I.A. Jul. 12, 2017), aff’g No. A206 071 811
18 (Immig. Ct. N.Y. City Oct. 6, 2016). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 in this case.
21 Under the circumstances of this case, we have considered
22 both the IJ’s and the BIA’s decisions “for the sake of
23 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
24 524, 528 (2d Cir. 2006).
25
26
2
1 Asylum – One-Year Filing Deadline
2 An alien is ineligible for asylum “unless the alien
3 demonstrates by clear and convincing evidence that the
4 application has been filed within 1 year after the date of
5 the alien’s arrival in the United States.” 8 U.S.C.
6 § 1158(a)(2)(B). Our jurisdiction to review the agency’s
7 findings regarding the timeliness of an asylum application is
8 limited to constitutional claims or questions of law. See 8
9 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). Such claims and
10 questions must be colorable. Barco-Sandoval v. Gonzales, 516
11 F.3d 35, 40-41 (2d Cir. 2008); Xiao Ji Chen v. U.S. Dep’t of
12 Justice, 471 F.3d 315, 329 (2d Cir. 2006). Chen raises no
13 colorable questions of law.
14 Chen contends that the agency erred in relying on her
15 divorce decree as evidence that she may have been in the
16 United States as early as 2012. She argues that the word
17 “America” in the decree could have meant Mexico, and that (in
18 any event) the date was the result of her mother’s error.
19 While a serious mischaracterization of the record may
20 constitute legal error, the alleged error of law is not
21 colorable because the record supports the agency’s
22 interpretation. See Mendez v. Holder, 566 F.3d 316, 323 (2d
3
1 Cir. 2009). Chen never testified that she worked while in
2 Mexico; she generally referred to the United States as
3 America; and she never used America to refer to Mexico. See
4 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where
5 there are two permissible views of the evidence, the
6 factfinder’s choice between them cannot be clearly
7 erroneous.” (quoting Anderson v. Bessemer City, 470 U.S. 564,
8 574 (1985))). To the extent she challenges the agency’s
9 reliance on her mother’s mistake, she is arguing over the
10 weight the agency gave the evidence, which we lack
11 jurisdiction to review. See Xiao Ji Chen, 471 F.3d at 329,
12 342.
13 Withholding and CAT – Adverse Credibility
14 There is no time restriction for seeking withholding of
15 removal and CAT relief. The agency denied that relief on
16 credibility grounds, which we review for substantial
17 evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
18 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering the
19 totality of the circumstances, and all relevant factors, a
20 trier of fact may base a credibility determination on . . .
21 the consistency between the applicant’s . . . written and
22 oral statements . . . , the internal consistency of each such
4
1 statement, [and] the consistency of such statements with
2 other evidence of record . . . without regard to whether an
3 inconsistency, inaccuracy, or falsehood goes to the heart of
4 the applicant’s claim, or any other relevant factor.”
5 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
6 credibility determination unless, from the totality of the
7 circumstances, it is plain that no reasonable fact-finder
8 could make such an adverse credibility ruling.” Xiu Xia Lin
9 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
10 Gao, 891 F.3d at 76. The adverse credibility determination
11 is supported by substantial evidence.
12 The agency reasonably relied on Chen’s varying
13 descriptions of the incident in which family planning
14 authorities attempted to transport her to the hospital for
15 sterilization. See 8 U.S.C. § 1158(b)(1)(B)(iii). Her
16 asylum application, interview, and testimony gave three
17 different locations for where she was when the authorities
18 came and were inconsistent about who followed her. And her
19 testimony included details of a physical altercation between
20 authorities and her family members that were omitted from her
21 asylum statement. See Ming Zhang v. Holder, 585 F.3d 715,
22 726 (2d Cir. 2009) (holding that the agency may “draw an
5
1 adverse inference about petitioner’s credibility based, inter
2 alia, on her failure to mention” important details or events
3 in prior statements); Lianping Li v. Lynch, 839 F.3d 144, 150
4 (2d Cir. 2016) (upholding adverse credibility determination
5 where “application did not simply omit incidents of
6 persecution . . . [but rather] described the same incidents
7 of persecution differently”). Chen had no compelling
8 explanations for these discrepancies. See Majidi v.
9 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
10 do more than offer a plausible explanation for h[er]
11 inconsistent statements to secure relief; [s]he must
12 demonstrate that a reasonable fact-finder would be compelled
13 to credit h[er] testimony.” (internal quotation marks
14 omitted)). Although the agency should not rely too heavily
15 on minor omissions, the information Chen added about her
16 family’s resistance did not merely supplement her account but
17 amounted to a different, more aggressive version of the event.
18 See Hong Fei Gao, 891 F.3d at 78-82 (holding that “probative
19 value of a witness’s prior silence on particular facts depends
20 on whether those facts are ones the witness would reasonably
21 have been expected to disclose” and that “[o]missions need
22 not go to the heart of a claim to be considered in adverse
6
1 credibility determinations, but they must still be weighed in
2 light of the totality of the circumstances and in the context
3 of the record as a whole.”).
4 Having questioned Chen’s credibility, the agency
5 reasonably relied on her failure to rehabilitate her
6 testimony with reliable corroborating evidence. See Biao
7 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
8 applicant’s failure to corroborate his or her testimony may
9 bear on credibility, because the absence of corroboration in
10 general makes an applicant unable to rehabilitate testimony
11 that has already been called into question.”). The agency
12 declined to afford significant weight to letters from Chen’s
13 mother and friend in China. That was not error because the
14 letters lacked detail, and the authors were unavailable for
15 cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332,
16 334 (2d Cir. 2013) (holding that “[w]e generally defer to the
17 agency’s evaluation of the weight to be afforded an
18 applicant’s documentary evidence” and deferring to agency’s
19 decision to afford little weight to spouse’s letter). Chen’s
20 mother’s letter also was inconsistent with Chen’s account of
21 her escape from the family planning officials: Chen said she
22 ran away after convincing the officials to stop the van;
7
1 Chen’s mother’s account suggests that Chen escaped during the
2 altercation between authorities and family members at the
3 house.
4 Given the multiple inconsistencies and the lack of
5 reliable corroboration, the adverse credibility determination
6 is supported by substantial evidence. See Xiu Xia Lin, 534
7 F.3d at 165-66. That determination is dispositive of
8 withholding of removal and CAT relief because both claims are
9 based on the same factual predicate. See Paul v. Gonzales,
10 444 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DISMISSED as to the asylum claim, and DENIED in remaining
13 part. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe
22 Clerk of Court
8