10-1481

Chen v. Holder

BIA

Page, IJ

A078 410 566

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

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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 20th day of May, two thousand thirteen.

PRESENT:

ROSEMARY S. POOLER,

RICHARD C. WESLEY,

PETER W. HALL,

Circuit Judges.

_______________________________________

SHAO QIONG CHEN,

Petitioner,

v. 10-1481

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Gary J. Yerman, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Richard M. Evans, Assistant

Director; Andrew Oliveira, 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

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DISMISSED in part and DENIED in part.

Petitioner Shao Qiong Chen, a native and citizen of the

People’s Republic of China, seeks review of a March 31,

2010, order of the BIA, affirming the June 18, 2008,

decision of Immigration Judge (“IJ”) Alan Page,

pretermitting her asylum application and denying her

application for withholding of removal and relief under the

Convention Against Torture (“CAT”). In re Shao Qiong Chen,

No. A078 410 566 (B.I.A. Mar. 31, 2010), aff’g No. A078 410

566 (Immig. Ct. N.Y. City June 18, 2008). We assume the

parties’ familiarity with the underlying facts and

procedural history of the case.

Under the circumstances of this case, we have reviewed

the IJ’s decision. See Yun-Zui Guan v. Gonzales, 432 F.3d

391, 394 (2d Cir. 2005). The applicable standards of review

are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

I. Asylum

Title 8, Section 1158(a)(3) of the United States Code

provides that no court shall have jurisdiction to review the

agency’s finding that an asylum application was untimely

under 8 U.S.C. § 1158(a)(2)(B), or its finding that neither

changed nor extraordinary circumstances excused the

untimeliness under 8 U.S.C. § 1158(a)(2)(D). 

Notwithstanding that provision, however, we retain

jurisdiction to review constitutional claims and questions

of law. See 8 U.S.C. § 1252(a)(2)(D). Chen argues that the

IJ erred in finding that the birth of her children did not

establish extraordinary circumstances excusing the untimely

filing of her asylum application. Because that argument

raises neither a constitutional claim nor a question of law,

see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329

(2d Cir. 2006), we lack jurisdiction to review the agency’s

pretermission of Chen’s asylum application, see 8 U.S.C.

§ 1252(a)(2)(D), and dismiss the petition for review with

respect to Chen’s challenges to the denial of asylum. 

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II. Withholding of Removal and CAT Relief

A. Adverse Credibility Determination

As an initial matter, contrary to Chen’s assertion, it

is clear that the IJ applied the correct standard of review

because he specifically stated that he was not applying the

law as amended by the REAL ID Act and referred to

appropriate case law. Furthermore, even in pre-REAL ID Act

cases, such as this one, the IJ is permitted to consider

whether the testimony is “generally consistent.” Diallo v.

INS, 232 F.3d 279, 288 (2d Cir. 2000) 

Substantial evidence supports the IJ’s adverse

credibility determination. As the IJ found: (1) although

Chen testified that, in 2000, Chinese authorities searched

for her at her parents home and threatened her parents,

these details were omitted from her asylum application and

her mother’s letter; (2) although Chen testified that she

stopped working in January 2000 and went into hiding in

October 2000, she stated in her asylum application that she

lived at home and continued to work until November 2000;

(3) although Chen initially testified that the cousin who

warned her about her pending arrest was a telephone operator

for the village committee, she later testified that he was a

messenger for the village committee, but upon further

questioning, she again described him as a telephone

operator; and (4) although Chen initially testified that she

learned about Falun Gong exercises from books she purchased

in the United States, she then testified that she purchased

the books in China, but upon further questioning, she again

testified that she purchased the books in the United States. 

Although minor and isolated discrepancies may be

insufficient to support an adverse credibility finding, see

Diallo, 232 F.3d at 288, the discrepancies here relate to

events at the heart of Chen’s claim—whether Chinese

authorities were looking for her, how she knew to go into

hiding, and how she learned about Falun Gong. Moreover, the

IJ reasonably relied on the cumulative effect of these

inconsistencies as the basis for questioning her

credibility. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d

Cir. 2006) (emphasizing that “even where an IJ relies on

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discrepancies or lacunae that, if taken separately, concern

matters collateral or ancillary to the claim, . . . the

cumulative effect may nevertheless be deemed consequential

by the fact-finder”)(internal quotation marks and citation

omitted); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166

n.3 (2d Cir. 2008) (noting that inconsistencies and

omissions are “functionally equivalent”).

Furthermore, as the record supports the IJ’s findings

that Chen provided conflicting testimony, the IJ was not

required to credit Chen’s explanations that: (1) her

affidavit and her mother’s letter did not mention the

threats by government officials because she forgot; (2) the

inconsistency regarding when she stopped working and went

into hiding was the result of a mistake; (3) the

inconsistency regarding whether her cousin was a telephone

operator or a messenger was only a matter of semantics; and

(4) the inconsistency regarding whether her Falun Gong books

were purchased in China or the United States was the result

of a mistake. See Majidi v. Gonzales, 430 F.3d 77, 80-81

(2d Cir. 2005) (holding that “an IJ may rely on an

inconsistency in an asylum applicant’s account to find that

applicant not credible - provided the inconsistency affords

‘substantial evidence’ in support of the adverse credibility

finding - without soliciting from the applicant an

explanation for the inconsistency.”). 

Chen also challenges the IJ’s reliance on her

alternating use of the terms “labor camp” and “jail,”

inconsistent statements as to how she responded to official

questioning regarding her Falun Gong practice, lack of

knowledge as to how officials discovered that she wrote a

letter protesting the treatment of Falun Gong practitioners,

and ability to leave China using her own passport. Even

assuming that these findings were erroneous, remand would be

futile in this case because the IJ did not rely

disproportionately on these findings to find Chen not

credible, and the IJ’s broader credibility determination is

amply supported by the record. See Xiao Ji Chen, 471 F.3d

at 335. Because the IJ’s adverse credibility determination

was based on the cumulative effect of multiple

inconsistencies, it can be confidently predicted based on

the IJ’s non-erroneous findings that the agency would reach

the same credibility determination absent any errors. See

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Xiu Xia Lin, 534 F.3d at 165-66. Because substantial

evidence supports the agency’s adverse credibility

determination, see Zhou Yun Zhang v. U.S. INS, 386 F.3d 66,

73 (2d Cir. 2004), overruled on other grounds by Shi Liang

Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007),

the agency’s denial of Chen’s withholding of removal and CAT

claims were proper to the extent they were both based on her

practice of Falun Gong. See Paul v. Gonzales, 444 F.3d 148,

156 (2d Cir. 2006). 

 B. Family Planning Claim

Substantial evidence also supports the agency’s

determination that Chen failed to establish a well-founded

fear of persecution on account of the birth of her second

child in the United States. See Jian Hui Shao v. Mukasey,

546 F.3d 138, 163 (2d Cir. 2008) (finding that substantial

evidence supported the BIA’s determination that petitioner

failed to demonstrate a reasonable possibility that he would

face forced sterilization in China based on fathering two

children). As the BIA found, the State Department’s 2007

Profile of Asylum Claims indicated that there have not been

any known cases in which individuals were forced to have an

abortion or be forcibly sterilized upon their return from

the United States. Because the agency pointed to evidence

indicating that Chen’s fear of forced sterilization was not

objectively reasonable and because Chen has not identified

any evidence in support her position, the agency reasonably

denied her application for withholding of removal based on

her claimed fear of forced sterilization for having two

children. See id. at 169-72. Because Chen was unable to

show the objective likelihood of persecution needed to make

out a withholding of removal claim, the BIA also reasonably

denied CAT relief, as both claims rested on the same factual

predicate. See Paul, 444 F.3d at 156.

For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part. 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. 

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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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