10-2005-ag

Chen v. Holder

BIA

Hom, IJ

A094 794 540

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 24th 4 day of April, two thousand twelve.

5

6 PRESENT:

7

8 RALPH K. WINTER,

9 ROBERT A. KATZMANN,

10 DEBRA ANN LIVINGSTON,

11 Circuit Judges. 

12 _______________________________________

13

14 DONG PIN CHEN,

15 Petitioner, 

16

17 v. 10-2005-ag

18 NAC 

19 ERIC H. HOLDER, JR., U.S. ATTORNEY 

20 GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Lee Ratner, New York, NY

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Christopher C. Fuller,

28 Senior Litigation Counsel; Zoe J.

29 Heller, Civil Division, Office of

30 Immigration Litigation, U.S.

31 Department of Justice, Washington

32 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 Dong Pin Chen, a native and citizen of the People’s

6 Republic of China, seeks review of the April 23, 2010, order

7 of the BIA affirming the April 7, 2008, decision of

8 Immigration Judge (“IJ”) Sandy K. Hom denying his

9 application for asylum, withholding of removal, and relief

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

11 Pin Chen, No. A094 794 540 (B.I.A. Apr. 23, 2010), aff’g No.

12 A094 794 540 (Immig. Ct. N.Y. City Apr. 7, 2008). We assume

13 the parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and the BIA’s opinions “for the sake of

17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18 2008). The applicable standards of review are well19 established. See 8 U.S.C. § 1252(b)(4)(B); Corovic v.

20 Mukasey, 519, F.3d 90, 95 (2d Cir. 2008); Xiu Xia Lin v.

21 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). As an initial

22 matter, Chen does not challenge the agency’s denial of CAT

23 relief or determination that he did not establish his
3

1 eligibility for relief based on his practice of Falun Gong

2 in the United States, and thus we do not address those

3 claims and address only the merits of Chen’s petition as it

4 pertains to the agency’s adverse credibility and burden

5 findings related to asylum and withholding of removal based

6 on past persecution. See Yueqing Zhang v. Gonzales, 426

7 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (providing that

8 “[i]ssues not sufficiently argued in the briefs are

9 considered waived and normally will not be addressed on

10 appeal”) (citation omitted).

11 Petitioner concedes that, following the passage of the

12 REAL ID Act, an ability to depart China using one’s own

13 passport may be an appropriate factor on which to base an

14 implausibility finding,. See Ying Li v. BCIS, 529 F.3d 79,

15 82-83 (2d Cir. 2008). In Ying Li, based on a “totality of

16 the circumstances” analysis, this Court upheld an adverse

17 credibility determination where petitioner: (1) claimed to

18 promote Falun Gong for over six years without ever learning

19 or practicing it herself; (2) claimed she was sought by

20 police, but testified that a known Falun Gong practitioner

21 openly visited her home and was never arrested; (3) departed

22 China from an airport using her own passport; and

23 (4) recited only “elementary information” about Falun Gong
4

1 and presented photographs of herself practicing Falun Gong

2 on only a single occasion. Id. 

3 However, petitioner argues that we have never held that

4 such an ability by itself is substantial evidence sufficient

5 to support an adverse credibility determination. See id.

6 (holding that “when an adverse credibility finding is based

7 partly or entirely on implausibility, we review the entire

8 record, not whether each unusual or implausible feature of

9 the account can be explained or rationalized.”). We

10 disagree with this description of the record before us. The

11 adverse credibility decision in this matter was not based

12 solely on petitioner’s use of his own passport to leave

13 China but on the implausibility of his claim of persecution

14 given the overall context in which his passport was used. 

15 Id. Petitioner testified that when he used his passport, he

16 was an escaped prisoner and in hiding and that the police

17 were looking for him “everywhere.” The finding that this

18 scenario was implausible hardly gave excessive, much less

19 exclusive, weight to petitioner’s use of his passport. Nor

20 is the finding otherwise irrational. Id.

21 We therefore need not address the agency’s alternative

22 determination that Chen failed to demonstrate that the harm

23 he suffered amounted to persecution.
5

1 For the foregoing reasons, the petition for review is

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

3 removal that the Court previously granted in this petition

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

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

6 oral argument in this petition is DENIED in accordance with

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

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

12