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.

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

New York, on the 19th 4 day of October, two thousand ten.

5

6 PRESENT:

7 REENA RAGGI,

8 RICHARD C. WESLEY,

9 GERARD E. LYNCH,

10 Circuit Judges. 

11 _______________________________________

12

13 XIONG FENG CHEN, A.K.A. HIONG FENG CHEN,

14 Petitioner, 

15

16 v. 09-1039-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Thomas V. Massucci, New York, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; William C. Peachey,

28 Assistant Director; Eric W.

29 Marsteller, Trial Attorney, Office

30 of Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Xiong Feng Chen, a native and citizen of the People’s

6 Republic of China, seeks review of a February 13, 2009 order

7 of the BIA affirming the May 16, 2007 decision of

8 Immigration Judge (“IJ”) Gabriel C. Videla, which denied his

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Xiong

11 Feng Chen, No. A099 533 620 (B.I.A. Feb. 13, 2009), aff’g

12 No. A099 533 620 (Immig. Ct. N.Y. City May 16, 2007). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 Under the circumstances of this case, we review the

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

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

18 applicable standards of review are well-established. See 

19 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,

20 534 F.3d 162, 165-66 (2d Cir. 2008). 

21 Chen articulated two separate bases for asylum in his

22 application for relief. The IJ found that Chen failed to

23 meet his burden of proof regarding his claim that he endured
3

1 past persecution based on his membership in a particular

2 social group. Additionally, the IJ found not credible

3 Chen’s alleged well-founded fear of persecution based on his

4 purported membership in the China Democracy Party (“CDP”). 

5 We address each of the IJ’s findings in turn.

6 I. Past Persecution

7 We find no error in the IJ’s determination that Chen

8 did not experience past persecution on account of a

9 protected ground when he was arrested after he and his

10 father attempted to prevent authorities from taking their

11 land. See 8 U.S.C. § 1101(a)(42). Chen claimed that

12 Chinese officials beat him and detained him overnight on

13 account of his membership in the alleged social group of

14 “peasant farmers.” As we have held, not all applicants who

15 can point to membership in some group united by a shared

16 past experience will qualify for asylum. See Koudriachova

17 v. Gonzales, 490 F.3d 255, 261-62 (2d Cir. 2007). Rather,

18 the applicant’s status as a member of that group–and not

19 some other factor–must be a central reason why that

20 individual is targeted for persecution. See 8 U.S.C.

21 § 1158(b)(1)(B). Here, the IJ determined that “[t]he

22 government simply wanted the land to build the park” and

23 arrested Chen and his father because they were “trying to
4

1 oppose the measures that were being taken by authorities.”

2 We find no error in this determination. See Koudriachova,

3 490 F.3d at 261-62; see also Matter of J-B-N- & S-M-, 24 I.

4 & N. Dec. 208, 215 (BIA 2007). 

5 II. Well-Founded Fear of Persecution

6 With respect to Chen’s alleged fear of future

7 persecution on account of his alleged CDP membership,

8 substantial evidence supports the agency’s adverse

9 credibility determination. See Xiu Xia Lin, 534 F.3d at

10 165-66; see also 8 U.S.C. § 1158(b)(1)(B)(iii).

11 We defer to the IJ’s determination that Chen’s demeanor

12 was not persuasive and that he appeared to have “memorized

13 certain information.” See Majidi v. Gonzales, 430 F.3d 77,

14 81 n.1 (2d Cir. 2005). The IJ also reasonably found that

15 Chen failed to testify consistently regarding when he joined

16 the CDP, and that he omitted from his testimony on direct

17 examination that police were aware of his CDP membership and

18 had repeatedly visited his home in China. These

19 discrepancies were valid bases for finding Chen not

20 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii). To the extent

21 Chen offered explanations, the IJ was not compelled to

22 credit them. See Majidi, 430 F.3d at 80-81. 
5

1 Finally, given Chen’s already questionable testimony,

2 the IJ did not err in finding that his failure to provide

3 adequate corroboration further undermined his credibility. 

4 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

5 Because Chen was thus unable to establish the requisite

6 well-founded fear of future persecution necessary for

7 asylum, it follows that he also failed to meet the higher

8 standard required for withholding of removal and CAT relief.

9 See Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006);

10 Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006). 

11 For the foregoing reasons, the petition for review is

12 DENIED. As we have completed our review, any stay of

13 removal that the Court previously granted in this petition

14 is VACATED, and any pending motion for a stay of removal in

15 this petition is DISMISSED as moot. Any pending request for

16 oral argument in this petition is DENIED in accordance with

17 Federal Rule of Appellate Procedure 34(a)(2), and Second

18 Circuit Local Rule 34.1(b).

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe, Clerk

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