09-3814-ag

Chen v. Holder

BIA

Hom, IJ

A096 790 332

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.

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 3 day of June, two thousand ten. rd

5

6 PRESENT:

7 JOSEPH M. McLAUGHLIN,

8 RICHARD C. WESLEY,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _______________________________________

12

13 JIE CHEN,

14 Petitioner, 

15

16 v. 09-3814-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Dehai Zhang, Flushing, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Terri J. Scadron, Assistant

27 Director, Office of Immigration

28 Litigation, United States Department

29 of Justice, Washington, D.C.
2

1

2 UPON DUE CONSIDERATION of this petition for review of a

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

4 ORDERED, ADJUDGED, AND DECREED, that the petition for review

5 is DENIED in part and DISMISSED in part.

6 Jie Chen, a native and citizen of the People’s Republic

7 of China, seeks review of an August 18, 2009, order of the

8 BIA affirming the December 12, 2007, decision of Immigration

9 Judge (“IJ”) Sandy K. Hom, which pretermitted as untimely

10 her application for asylum and denied her applications for

11 withholding of removal and relief under the Convention

12 Against Torture (“CAT”). In re Jie Chen, No. A096 790 332

13 (B.I.A. Aug. 18, 2009), aff’g No. A096 790 332 (Immig. Ct.

14 N.Y. City Dec. 12, 2007). We assume the parties’

15 familiarity with the underlying facts and procedural history

16 in this case.

17 Under the circumstances of this case, we review the

18 IJ’s decision as supplemented by the BIA’s decision. See

19 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

20 applicable standards of review are well established. See 

21 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,

22 534 F.3d 162, 165-66 (2d Cir. 2008); Manzur v. U.S. Dep't of

23 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
3

1 Under 8 U.S.C. § 1158(a)(3), this Court lacks

2 jurisdiction to review the agency’s finding that an asylum

3 application was untimely under 8 U.S.C. § 1158(a)(2)(B), as

4 well as its finding that neither changed nor extraordinary

5 circumstances exist to excuse the untimeliness under 8

6 U.S.C. § 1158(a)(2)(D). Nevertheless, we retain

7 jurisdiction to review constitutional claims and “questions

8 of law.” 8 U.S.C. § 1252(a)(2)(D). Here, Chen merely

9 challenges the IJ’s determination that she failed to

10 demonstrate “extraordinary circumstances,” a factual

11 determination over which we lack jurisdiction. See 8

12 U.S.C. § 1158(a)(3). Accordingly, we dismiss the petition

13 for review to the extent Chen challenges the agency’s

14 pretermission of her asylum application.

15 For asylum applications governed by the REAL ID Act, as

16 is the case here, the agency may, considering the totality

17 of the circumstances, base a credibility finding on an

18 asylum applicant’s “demeanor, candor, or responsiveness,”

19 the plausibility of his or her account, and inconsistencies

20 in his or her statements, without regard to whether they go

21 “to the heart of the applicant’s claim.” See 8 U.S.C. 

22 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. In this
4

1 case, the IJ reasonably determined that Chen’s testimony

2 disavowing her involvement in the filing of several

3 fraudulent immigration applications was inconsistent with

4 the contents of those fraudulent applications, which matched

5 the information, signatures, and photos on her current

6 asylum application, her passport, and her notarial birth

7 certificate. The IJ also based its adverse credibility

8 finding on Chen’s “changing and conflicting” testimony

9 regarding what information she provided the agency that

10 allegedly filed fraudulent immigration applications on her

11 behalf. The IJ also found that Chen’s credibility was

12 further undermined by her inconsistent testimony regarding

13 the amount of money she allegedly paid the agency. These

14 were proper bases for an adverse credibility determination. 

15 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

16 167. To the extent that Chen offered explanations for these

17 discrepancies, the IJ was not compelled to credit them. See

18 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

19 Moreover, the BIA reasonably understood the IJ’s

20 decision to indicate that Chen’s lack of credibility was “so

21 extensive as to undermine her credibility on all issues,”

22 including her claim that she underwent a forced abortion in
We note that whatever errors the IJ may have 1

committed, if any, were harmless. First, the IJ may have

erred in referencing an article during Chen’s merits

hearing that questioned the validity of the CDP as a

political organization, while failing to make this

article part of the record. However, the IJ offered Chen

and her witness an opportunity to challenge its veracity. 

See Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 200 

(2d Cir. 2007). Second, the IJ may have erred in failing

to consider explicitly whether the Chinese government is

likely to become aware of Chen’s CDP activities. See

Hongsheng Leng, 528 F.3d at 142-43. Nevertheless, remand

on these bases would be futile because substantial

evidence supported the IJ’s overall adverse credibility

and burden of proof findings. See Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006).

5

1 China. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

2 2007).

3 We also find no error in the IJ’s finding that Chen

4 failed to present sufficient evidence demonstrating that

5 Chinese officials were aware of or interested in her China

6 Democracy Party (“CDP”) activities in the United States.1

7 See Hongsheng Leng v. Mukasey, 528 F.3d 135, 142-43 (2d Cir.

8 2008).

9 Finally, because Chen failed to challenge sufficiently

10 the agency’s denial of her application for CAT relief before

11 this Court, we deem any such argument waived. See Yueqing

12 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

13 2005).

14 For the foregoing reasons, the petition for review is
6

1 DENIED in part and DISMISSED in part. As we have completed

2 our review, any stay of removal that the Court previously

3 granted in this petition is VACATED, and any pending motion

4 for a stay of removal in this petition is DISMISSED as moot. 

5 Any pending request for oral argument in this petition is

6 DENIED in accordance with Federal Rule of Appellate

7 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk

10