Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-4998-ag

Chen v. Holder

BIA

Hom, IJ

A200 023 621

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 5 day of January, two thousand ten. th

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 BARRINGTON D. PARKER,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _______________________________________

12

13 XIU QIN CHEN,

14 Petitioner,

15

16 v. 08-4998-ag

17 NAC

18 ERIC H. HOLDER, Jr., U.S. ATTORNEY 

19 GENERAL,*

20 Respondent.

21 _______________________________________
2

1 FOR PETITIONER: Thomas V. Massucci, New York, New

2 York.

3

4 FOR RESPONDENT: Tony West, Assistant Attorney

5 General, Mary Jane Candaux,

6 Assistant Director, Achiezer

7 Guggenheim, Attorney, Office of

8 Immigration Litigation, Civil

9 Division, United States Department

10 of Justice, Washington, D.C.

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Petitioner Xiu Qin Chen, a native and citizen of the

6 People’s Republic of China, seeks review of a September 12,

7 2008 order of the BIA affirming the June 21, 2006 decision

8 of Immigration Judge (“IJ”) Sandy Hom, insofar as it denies

9 her application for asylum and withholding of removal. In

10 re Xiu Qin Chen, No. A200 023 621 (B.I.A. Sep. 12, 2008),

11 aff’g No. A200 023 621 (Immig. Ct. N.Y. City June 21, 2006). 

12 We assume the parties’ familiarity with the underlying facts

13 and procedural history of the case. 

14 We review the agency’s factual findings, including

15 adverse credibility determinations, under the substantial

16 evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also
3

1 Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We

2 review de novo questions of law and the application of law

3 to undisputed fact. See Bah v. Mukasey, 529 F.3d 99, 110

4 (2d Cir. 2008). 

5 Because Chen filed her asylum application after May 11,

6 2005, the amendments made to the Immigration and Nationality

7 Act by the REAL ID Act of 2005 apply to her asylum

8 application. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat.

9 231, 305 (2005). For asylum applications governed by the

10 REAL ID Act, the agency may, considering the totality of the

11 circumstances, base a credibility finding on an asylum

12 applicant’s demeanor, the plausibility of his or her

13 account, and inconsistencies in his or her statements,

14 without regard to whether they go “to the heart of the

15 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see

16 Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007). 

17 Substantial evidence supports the agency’s adverse

18 credibility determination. Chen challenges the IJ’s finding

19 that her testimony was “scant” and “generalized.” We have

20 found that when an IJ finds that an applicant’s testimony is

21 “vague,” he may fairly wonder whether it is fabricated, and

22 then probe for additional details, seeking to draw out
4

1 inconsistencies. Mei Chai Ye v. U.S. Dept. of Justice, 489

2 F.3d 517, 527 n. 9 (2d Cir. 2007). This is precisely what

3 the IJ did in this case. 

4 The IJ noted a discrepancy between Chen’s testimony and

5 asylum application concerning the date her colleague, Guo

6 Yin Xie, was arrested. Specifically, although Chen’s asylum

7 application indicated that Xie was arrested on February 1,

8 2005, she testified that he was not arrested on that date. 

9 There is no merit to Chen’s argument that the IJ erred by

10 failing to allow her an opportunity to explain this

11 discrepancy. To the contrary, Chen was provided at least

12 two opportunities to explain it, failing to provide a

13 compelling explanation either time. See Majidi v. Gonzales,

14 430 F.3d 77, 80-81 (2d Cir. 2005). Because under the REAL

15 ID Act, the agency may base an adverse credibility

16 determination on any inconsistency, without regard to

17 whether it goes to the heart of the applicant’s claim, see

18 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

19 F.3d 162, 167 (2d Cir. 2008), the IJ reasonably relied on

20 this discrepancy to find Chen not credible.

21 Furthermore, contrary to Chen’s argument, the IJ did

22 not engage in impermissible speculation when he found
5

1 implausible her claim that although government authorities

2 were seeking to arrest her, she had no difficulty obtaining

3 an official government document and departing China. The IJ

4 found that this testimony undermined her assertion that she

5 was a “fugitive . . . wanted by the police for Falun Gong

6 engagement.” This Court has held that an applicant’s

7 ability to obtain identification documents in his home

8 country while in hiding is not “a valid, cogent reason for a

9 negative credibility finding.” See Secaida-Rosales v.

10 I.N.S., 331 F.3d 297, 310 (2d Cir. 2003), overruled on other

11 grounds by Xiu Xia Lin, 534 F.3d at 167. However, we have

12 also upheld the agency’s finding that it was implausible

13 that a person seeking to flee from repression would

14 repeatedly put himself in situations where he encountered

15 legal authorities checking his identity, and possibly, his

16 illegal status. Yan v. Mukasey, 509 F.3d 63, 68 (2d Cir.

17 2007). In making his adverse credibility determination, the

18 IJ did not rely solely on Chen’s ability to obtain official

19 government documents and depart China without difficulty,

20 but also on her inconsistent testimony. Accordingly,

21 considering the totality of the circumstances and all

22 relevant factors, the IJ’s credibility determination was
6

1 supported by substantial evidence. See 8 U.S.C.

2 § 1158(b)(1)(B)(iii). 

3 For the foregoing reasons, the petition for review

4 is DENIED. As we have completed our review, any stay of

5 removal that the Court previously granted in this petition

6 is VACATED, and any pending motion for a stay of removal in

7 this petition is DISMISSED as moot. Any pending request for

8 oral argument in this petition is DENIED in accordance with

9 Federal Rule of Appellate Procedure 34(a)(2), and Second

10 Circuit Local Rule 34(b).

11

12 FOR THE COURT:

13 Catherine O’Hagan Wolfe, Clerk

14

15 By:____________________________