15-1239 Chen v. Lynch BIA Balasquide, IJ A200 894 325 

### 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **9 th**  **day of August, two thousand sixteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **BARRINGTON D. PARKER,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **FEI CHEN,** 13 Petitioner **,** 14 15 **v. 15-1239** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Zhen Liang Li, New York, N.Y. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Blair T. 26 O’Connor, Assistant Director; 27 Maarja T. Luhtaru, Trial Attorney, 28 Office of Immigration Litigation, 29 United States Department of Justice, 30 Washington, D.C. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Fei Chen, a native and citizen of the People’s 5 Republic of China, seeks review of a March 19, 2015 decision 6 of the BIA, affirming a September 11, 2013 decision of an 7 Immigration Judge (“IJ”) denying Chen’s application for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Fei Chen, No. A200 894 325 (B.I.A. Mar. 10 19, 2015), aff’g No. A200 894 325 (Immig. Ct. N.Y. City Sept. 11 11, 2013). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 Ordinarily, we review the BIA’s decision – and not the IJ’s 14 on appeal. See Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 15 520, 522 (2d Cir. 2005). Under the circumstances of this case, 16 we review the IJ’s decision as modified by the BIA. See id. 17 The applicable standards of review are well established. 18 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 19 165-66 (2d Cir. 2008) (per curiam). 203 For asylum applications like Chen’s, governed by the REAL 1 ID Act, the agency may, “[c]onsidering the totality of the 2 circumstances,” base a credibility finding on an asylum 3 applicant’s “demeanor, candor, or responsiveness,” the 4 plausibility of his account, and inconsistencies in his 5 statements, “without regard to whether” th ey go “to the heart 6 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 7 Xia Lin , 534 F.3d at 163-64. This Court “defer[s] . . . to an 8 IJ’s credibility determination unless, from the totality of the 9 circumstances, it is plain that no reasonable fact-finder could 10 make such an adverse credibility ruling.” Xiu Xia Lin , 534 F.3d 11 at 167. As discussed below, substantial evidence supports the 12 agency’s adverse credibility determination. 13 The credibility determination was properly based on the 14 inconsistencies between Chen’s testimony and evidence 15 concerning the demolition of his father’s home--the basis of 16 Chen’s asylum claim. Id. Chen testified that the government 17 demolished his father’s home in 2010; he also testified that 18 his father moved in with his uncle after the house was destroyed. 19 Chen’s father’s letter, however, was dated 2013 and listed the 20 address of the purportedly demolished home as his return 214 address. When asked to explain why his father would use an 1 address that no longer existed, Chen responded that it was his 2 father’s decision. The agency was not required to credit this 3 explanation. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 4 2005). 5 Nor did the agency err in relying in part on the additional 6 minor inconsistency concerning where Chen’s passport was taken. 7
See Xiu Xia Lin , 534 F.3d at 163-64. Chen testified that his 8 passport was taken from him at “home” (after allegedly having 9 fled from his father’s home); when asked to clarify what he meant 10 by “home,” Chen said his uncle’s home, which he considered as 11 a home. The agency reasonably concluded that while the 12 inconsistency was minor, it further called into doubt whether 13 Chen’s father’s home was taken by the government, and the agency 14 did not err in rejecting Chen’s explanation, see Majidi , 430 15 F.3d at 80. 16 Considering the totality of t he circumstances, it cannot 17 be said “that no reasonable fact-finder could make such a 18 credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. After all, 19 “[a] petitioner ‘must do more than offer a plausible explanation 20 for his inconsistent statements to secure relief; he must 215 demonstrate that a reasonable fact-finder would be compelled 1

to credit his testimony.’” Majidi , 430 F.3d at 80 (quoting Zhou 2 Yun Zhang v. INS , 386 F.3d 66,76 (2d Cir. 2004)). Because all 3 forms of relief (asylum, withholding of removal, and CAT relief) 4 were based on the same factual predicate, the adverse 5 credibility determination is dispositive of all three. See 6 Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our rev iew, any stay of removal 9 that the Court previously granted in this petition is VACATED, 10 and any pending motion for a stay of removal in this petition 11 is DISMISSED as moot. Any pending request for oral argument 12 in this petition is DENIED in accordance with Federal Rule of 13 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 14 34.1(b). 15
FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17