Chao Chen v. Holder , 466 F. App'x 52 ( 2012 )

11-1019-ag
Chao Chen v. Holder
BIA
Schoppert, IJ
A094 915 895
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 4th day of April, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
_______________________________________
CHAO CHEN,
Petitioner,
v. 11-1019-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Farah Loftus, Esq., Century City, CA
FOR RESPONDENT: Tony West, Assistant Attorney
General; Erica B. Miles, Senior
Litigation Counsel; Jesse D. Lorenz,
Trial Attorney, Office of
Immigration Litigation, 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.
Chao Chen, a native and citizen of the People’s
Republic of China, seeks review of a February 23, 2011
decision of the BIA affirming the March 5, 2009 decision of
Immigration Judge (“IJ”) Douglas B. Schoppert, which denied
his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). See In
re Chao Chen, No. A094 915 895 (B.I.A. February 23, 2011),
aff’g No. A094 915 895 (Immig. Ct. N.Y. City Aug. 25, 2008).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA’s decision.
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. § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
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For asylum applications governed by the amendments made
to the Immigration and Nationality Act by the REAL ID Act of
2005, an IJ may base a credibility finding on the
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of the applicant’s account, and inconsistencies
in the applicant’s statements, without regard to whether
they go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d
162, 167 (2d Cir. 2008). We will “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 a finding. Xiu Xia Lin, 534 F.3d at 167.
In this case, the IJ reasonably found Chen to lack
credibility based on inconsistencies between Chen’s asylum
application and testimony, inconsistencies within Chen’s
testimony, and inconsistencies between Chen’s testimony and
the testimony of his corroborating witness. Chen indicated
in his asylum application that he was born on April 7, 1987,
then testified that he was born on April 8, 1987. Chen
stated in his asylum application that he was questioned by
police about his uncle in February 2006, initially testified
that he was questioned in February 2005, and later revised
his testimony to state that he was questioned in February
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2006. Chen initially testified that he was baptized on
April 8, 2006, but later indicated that he was baptized in
April 2007. Chen testified that he had last seen his
corroborating witness several weeks before his hearing,
while the witness testified that he had spoken with Chen at
church the day before the hearing. These were all proper
grounds for an adverse credibility finding. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166.
The IJ also properly based his adverse credibility
finding on Chen’s demeanor at the hearing. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Specifically, the IJ found that Chen
appeared to be “reciting a story that he had memorized and
not testifying about events that he had actually lived
through.” Addendum to Pet’s’s Br. at 32. We generally
defer to such a demeanor finding and do so here. See Majidi
v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
The BIA’s decision addressed both the inconsistencies
and Chen’s demeanor. The BIA also properly concluded that
Chen failed to introduce sufficient corroborating evidence
to rehabilitate his credibility. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007). Given the totality of the
circumstances, including the inconsistencies, Chen’s
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demeanor, and the lack of sufficient corroborating evidence,
we conclude that the agency’s adverse credibility
determination is supported by substantial evidence. See 8
U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
As the only basis for Chen’s withholding of removal and CAT
claims also depended on his credibility, the adverse
credibility determination is also dispositive of those
claims. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006); Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520,
523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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