13-924 Chen v. Holder BIA Cheng, IJ A087 475 403 

### 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** 1 **Appeals for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of New** 3 **York, on the 6 th** **day of November, two thousand fourteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **GERARD E. LYNCH,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **YING QIANG CHEN,** 13 14 Petitioner**,** 15 16 **v. 13-924** 17 **NAC** 18 19 **ERIC H. HOLDER, JR., UNITED** 20 **STATES ATTORNEY GENERAL,** 21 22 Respondent**.** 23 24

**_____________________________________** 25 26 **FOR PETITIONER: Nataliya I. Gavlin, New York, New** 27 **York.** 28**FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 1 **General; Terri J. Scadron, Assistant** 2 **Director; Anthony W. Norwood, Senior** 3 **Litigation Counsel, Office of** 4 **Immigration Litigation, United** 5 **States Department of Justice,** 6 **Washington D.C.** 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Ying Qiang Chen, a native and citizen of China, seeks 12 review of a February 22, 2013, decision of the BIA affirming 13 the December 14, 2010, decision of an Immigration Judge 14 (“IJ”), which denied his application for asylum, withholding 15 of removal, and relief pursuant to the Convention Against 16 Torture (“CAT”). In re Ying Qiang Chen, No. A087 475 403 17 (B.I.A. Feb. 22, 2013),aff’gNo. A087 475 403 (Immig. Ct. 18 N.Y. City Dec. 14, 2010). We assume the parties’ 19 familiarity with the underlying facts and procedural history 20 in this case. 21 Under the circumstances of this case, we have reviewed 22 the IJ’s decision as modified by the BIA decision. See Xue 23 Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d 24 Cir. 2005). The applicable standards of review are well 25

2established. See8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 1 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 2 We conclude that the agency’s findings provide 3 substantial evidence to support the adverse credibility 4 determination. For asylum applications like Chen’s, 5 governed by the REAL ID Act of 2005, the agency may, 6 “[c]onsidering the totality of the circumstances,” base a 7 credibility determination on an asylum applicant’s demeanor, 8 the plausibility of his account, and inconsistencies in his 9 statements, “without regard to whether” they go “to the 10 heart of the applicant’s claim.” 8 U.S.C. 11 § 1158(b)(1)(B)(iii). We “defer therefore to [the agency’s] 12 credibility determination unless, from the totality of the 13 circumstances, it is plain that no reasonable fact-finder 14 could make such an adverse credibility ruling.” Xiu Xia Lin 15 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). 16 The agency reasonably based its adverse credibility 17 determination on the inconsistencies between Chen’s credible 18 fear interview and statements he made in his asylum 19 application and at his hearing. A comparison shows 20 substantial discrepancies. Chen initially stated he fled 21 China because his girlfriend was forced to have an abortion, 22 but he applied for asylum based on that forced abortion and 23 3alleged past persecution as a Falun Gong practitioner, 1 including an arrest, beating, and detention. He explained 2 that he failed to disclose his Falun Gong activities at the 3 interview because : (1) he only recounted the most recent 4 event; (2) “there [was not] enough time”; (3) he was told to 5 leave the interview before he could finish; and (4) he was 6 nervous. Given that Chen was asked during his interview 7 whether there was anything else that was important to his 8 claim, the agency was not required to credit these 9 explanations. See Majidi v. Gonzales , 430 F.3d 77, 80-81 10 (2d Cir. 2005) (holding that the agency need not credit an 11 applicant’s explanations for inconsistent testimony unless 12 those explanations would compel a reasonable fact-finder to 13 do so). 1 14 Moreover, the agency reasonably relied on a further 15 inconsistency with respect to Chen’s arrest in China for 16 Falun Gong. Chen stated at his interview that he had never 17 been arrested for a serious crime, but stated in his asylum 18

1 Chen also claimed that he was beaten by U.S. border patrol agents, and suggests that this played a role in the omission of his Falun Gong activities at his initial interview. However, as found by the agency, there is no evidence to support this accusation, he did not mention it in his credible fear interview, and he did not file a complaint. 4application and testimony that he had been arrested in China 1 for his Falun Gong activities. The agency reasonably 2 rejected Chen’s explanation that he forgot about the arrest 3 and he was nervous at the interview, particularly given his 4 ability to remember the seemingly less serious beating by 5 family planning authorities. 6 Finally, the agency based its adverse credibility 7 determination in part on Chen’s demeanor and responses, 8 finding that Chen’s answers were “non-responsive and 9 evasive,” and, when asked why he failed to mention Falun 10 Gong during credible fear interview, he was “hesitant and 11 vague.” We give “particular deference to credibility 12 determinations based on the adjudicator’s observation of the 13 applicant’s demeanor.” Shu Wen Sun v. BIA, 510 F.3d 377, 14 381 (2d Cir. 2007) (per curiam) (internal quotation marks 15 and citation omitted). 16 Having called Chen’s credibility into question, the 17 agency reasonably determined that his failure to corroborate 18 his girlfriend’s abortion and his Falun Gong activities 19 further undermined his asylum claim. See 8 U.S.C. 20 § 1158(b)(1)(B)(ii) (providing that “[t]he testimony of the 21 applicant may be sufficient to sustain the applicant’s 22 burden without corroboration, but only ifthe applicant 23 5satisfies the trier of fact that the applicant’s testimony 1 is credible, is persuasive, and refers to specific facts 2 sufficient to demonstrate that the applicant is a refugee” 3 (emphasis added)). “An applicant’s failure to corroborate 4 [his] testimony may bear on credibility, because the absence 5 of corroboration in general makes an applicant unable to 6 rehabilitate testimony that has already been called into 7 question.” Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 8 Cir. 2007) (per curiam). It was reasonable for the agency 9 to reject Chen’s explanation that he had lost contact with 10 his former girlfriend , because he made no attempt to contact 11 her or at least did not describe any such attempt. See 8 12 U.S.C. § 1254(b)(4) (“No court shall reverse a determination 13 made by a trier of fact with respect to the availability of 14 corroborating evidence . . . [unless] a reasonable trier of 15 fact is compelled to conclude that such corroborating 16 evidence is unavailable.”). Moreover, as the agency noted, 17 the only corroborating evidence Chen submitted was a letter 18 from his mother, an interested witness who was not subject 19 to cross-examination. See Matter of H-L-H & Z-Y-Z , 25 I. & 20 N. Dec. 209, 215 (BIA 2010) (giving diminished evidentiary 21 weight to letters from relatives because they were 22 “interested witnesses who were not subject to cross23 6examination”),rev’d on other grounds by Hui Lin Huang v. 1 Holder, 677 F.3d 130 (2d Cir. 2012);see also Xiao Ji Chen 2 v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 2006) 3 (holding weight accorded to applicant’s evidence lies 4 largely within agency discretion). 5 Given that Chen’s omission, inconsistencies, and lack 6 of corroboration all relate to the main bases of his asylum 7 claim, the totality of the circumstances supports the 8 adverse credibility determination. Because all of Chen’s 9 claims depend on the same factual predicate, the adverse 10 credibility determination is dispositive of asylum, 11 withholding of removal, and CAT relief. Paul v. Gonzales , 12 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang, 426 F.3d at 13 523. 14 15 For the foregoing reasons, the petition for review is 16 DENIED. As we have completed our review, the pending motion 17 for a stay of removal in this petition is DENIED as moot. 18
FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21 22

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