09-1039-ag Chen v. Holder BIA Videla, IJ A099 533 620 

### 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 19 th** **day of October, two thousand ten.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **RICHARD C. WESLEY,** 8 **GERARD E. LYNCH,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **XIONG FENG CHEN, A.K.A. HIONG FENG CHEN,** 13 Petitioner**,** 14 15 **v. 09-1039-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Thomas V. Massucci, New York, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; William C. Peachey,** 27 **Assistant Director; Eric W.** 28 **Marsteller, Trial Attorney, Office** 29 **of Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 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 3 is DENIED. 4 Xiong Feng Chen, a native and citizen of the People’s 5 Republic of China, seeks review of a February 13, 2009 order 6 of the BIA affirming the May 16, 2007 decision of 7 Immigration Judge (“IJ”) Gabriel C. Videla, which denied his 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Xiong 10 Feng Chen , No. A099 533 620 (B.I.A. Feb. 13, 2009),aff’g 11 No. A099 533 620 (Immig. Ct. N.Y. City May 16, 2007). We 12 assume the parties’ familiarity with the underlying facts 13 and procedural history in this case. 14 Under the circumstances of this case, we review the 15 IJ’s decision as supplemented by the BIA’s decision. See 16 Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 17 applicable standards of review are well-established. See 18 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 19 534 F.3d 162, 165-66 (2d Cir. 2008). 20 Chen articulated two separate bases for asylum in his 21 application for relief. The IJ found that Chen failed to 22 meet his burden of proof regarding his claim that he endured 233 past persecution based on his membership in a particular 1 social group. Additionally, the IJ found not credible 2 Chen’s alleged well-founded fear of persecution based on his 3 purported membership in the China Democracy Party (“CDP”). 4 We address each of the IJ’s findings in turn. 5 **I. Past Persecution** 6 We find no error in the IJ’s determination that Chen 7 did not experience past persecution on account of a 8 protected ground when he was arrested after he and his 9 father attempted to prevent authorities from taking their 10 land. See8 U.S.C. § 1101(a)(42). Chen claimed that 11 Chinese officials beat him and detained him overnight on 12 account of his membership in the alleged social group of 13 “peasant farmers.” As we have held, not all applicants who 14 can point to membership in some group united by a shared 15 past experience will qualify for asylum. See Koudriachova 16 v. Gonzales , 490 F.3d 255, 261-62 (2d Cir. 2007). Rather, 17 the applicant’s status as a member of that group–and not 18 some other factor–must be a central reason why that 19 individual is targeted for persecution. See 8 U.S.C. 20 § 1158(b)(1)(B). Here, the IJ determined that “[t]he 21 government simply wanted the land to build the park” and 22 arrested Chen and his father because they were “trying to 234 oppose the measures that were being taken by authorities.” 1 We find no error in this determination. See Koudriachova , 2 490 F.3d at 261-62;see also Matter of J-B-N- & S-M- , 24 I. 3 & N. Dec. 208, 215 (BIA 2007). 4 **II. Well-Founded Fear of Persecution** 5 With respect to Chen’s alleged fear of future 6 persecution on account of his alleged CDP membership, 7 substantial evidence supports the agency’s adverse 8 credibility determination. See Xiu Xia Lin , 534 F.3d at 9 165-66; see also8 U.S.C. § 1158(b)(1)(B)(iii). 10 We defer to the IJ’s determination that Chen’s demeanor 11 was not persuasive and that he appeared to have “memorized 12 certain information.” See Majidi v. Gonzales , 430 F.3d 77, 13 81 n.1 (2d Cir. 2005). The IJ also reasonably found that 14 Chen failed to testify consistently regarding when he joined 15 the CDP, and that he omitted from his testimony on direct 16 examination that police were aware of his CDP membership and 17 had repeatedly visited his home in China. These 18 discrepancies were valid bases for finding Chen not 19 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii). To the extent 20 Chen offered explanations, the IJ was not compelled to 21 credit them. See Majidi , 430 F.3d at 80-81

. 225 Finally, given Chen’s already questionable testimony, 1 the IJ did not err in finding that his failure to provide 2 adequate corroboration further undermined his credibility. 3 See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 4 Because Chen was thus unable to establish the requisite 5 well-founded fear of future persecution necessary for 6 asylum, it follows that he also failed to meet the higher 7 standard required for withholding of removal and CAT relief. 8 See Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006); 9 Paul v. Gonzales , 444 F.3d 148, 155-56 (2d Cir. 2006). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our review, any stay of 12 removal that the Court previously granted in this petition 13 is VACATED, and any pending motion for a stay of removal in 14 this petition is DISMISSED as moot. Any pending request for 15 oral argument in this petition is DENIED in accordance with 16 Federal Rule of Appellate Procedure 34(a)(2), and Second 17 Circuit Local Rule 34.1(b). 18
FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21 22 23