13-642

Chen v. Holder

BIA

Videla, IJ

A087 633 206

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 6th 4 day of May, two thousand fourteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 GERARD E. LYNCH,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges.

11 _____________________________________

12

13 XUELING CHEN,

14 Petitioner, 

15

16 v. 13-642

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Ramesh K. Shrestha, New York, NY.

24

25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

26 General; Anthony C. Payne, Senior

27 Litigation Counsel; Liza S. Murcia,

28 Attorney, Office of Immigration

29 Litigation, United States Department

30 of Justice, Washington, D.C.
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 Xueling Chen, a native and citizen of the People’s

6 Republic of China, seeks review of a January 29, 2013,

7 decision of the BIA affirming an Immigration Judge’s (“IJ”)

8 August 11, 2011, decision denying her application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Xueling Chen, No.

11 A087 633 206 (B.I.A. Jan. 29, 2013), aff’g No. A087 633 206

12 (Immig. Ct. N.Y. City Aug. 11, 2011). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history of this case.

15 Under the circumstances of this case, we have reviewed

16 the decision of the IJ as modified and supplemented by the

17 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

18 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268,

19 271 (2d Cir. 2005). The applicable standards of review are

20 well established. See 8 U.S.C. § 1252(b)(4)(B); see also

21 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

22

2
1 For applications such as Chen’s, governed by the REAL

2 ID Act of 2005, the agency may, “[c]onsidering the totality

3 of the circumstances,” base a credibility finding on the

4 applicant’s “demeanor, candor, or responsiveness,” the

5 plausibility of her account, and inconsistencies in her

6 statements, regardless of whether such inconsistencies go

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

8 § 1158(b)(1)(B)(iii). We “defer to an IJ’s credibility

9 determination unless, from the totality of the

10 circumstances, it is plain that no reasonable fact-finder

11 could make” such a ruling. Xiu Xia Lin v. Mukasey, 534 F.3d

12 162, 167 (2d Cir. 2008).

13 Here, the IJ reasonably based his adverse credibility

14 determination on Chen’s inconsistent testimony,

15 inconsistencies between her testimony and that of her uncle,

16 and her omission of information from her asylum application. 

17 As the agency found, Chen gave confusing and inconsistent

18 testimony regarding her passports, initially stating that

19 she only ever had three passports, but later testifying that

20 she obtained a fourth passport, a copy of which she used to

21 obtain a fifth passport while she was in the United States. 

22 In addition, although Chen testified to obtaining the fifth

3
1 passport in May 2009, her July 2009 asylum application

2 stated she did not have a passport. The agency also

3 reasonably relied on inconsistencies between the testimony

4 of Chen and her witness. For example, Chen testified that

5 she had never been to Alabama, contradicting her uncle’s

6 testimony that she worked for months in his Alabama

7 restaurant. While tangential to Chen’s asylum claim, these

8 inconsistencies are numerous and, considering the totality

9 of the circumstances, support the agency’s adverse

10 credibility determination. See 8 U.S.C.

11 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

12 at 167 (providing that an IJ may support an adverse

13 credibility determination with “any inconsistency or

14 omission”); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

15 2007) (“a single instance of false testimony may . . .

16 infect the balance of the alien’s uncorroborated or

17 unauthenticated evidence”). 

18 Moreover, the agency reasonably rejected Chen’s

19 explanation that she was confused by the aggressive

20 questioning by the IJ and government attorney. The agency

21 reasonably found that the record does not reflect

22 questioning that was overly persistent, but simply efforts

4
1 by the IJ and attorney to elicit responsive answers to their

2 questions. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

3 Cir. 2005). 

4 As to demeanor, we defer to the IJ’s finding that

5 Chen’s hesitant and evasive testimony affected her

6 credibility as that finding was connected to Chen’s

7 confusing and inconsistent testimony regarding her

8 passports. See Li Hua Lin v. U.S. Dep’t of Justice, 453

9 F.3d 99, 109 (2d Cir. 2006).

10 Given these inconsistencies and Chen’s hesitant

11 demeanor, the totality of the circumstances supports the

12 agency’s adverse credibility determination. Although Chen

13 submitted corroborating letters from her relatives and a

14 photograph purportedly of her practicing Falun Gong, the IJ

15 reasonably found that evidence insufficient to establish her

16 eligibility for relief absent credible testimony, as the

17 authors were not available for cross-examination and Chen

18 could not identify the origin of the photograph. See Xiao

19 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

20 2006) (the weight accorded to documentary evidence lies

21 largely within agency’s discretion); see also Matter of H-L22 H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving

23 diminished evidentiary weight to letters from “relatives and

5
1 friends,” because they were from interested witnesses not

2 subject to cross-examination), abrogated on other grounds by

3 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). 

4 As the only evidence of a threat to Chen’s life or

5 freedom, or likelihood of torture, depended upon her

6 credibility, the adverse credibility determination

7 necessarily precludes success on her claims for asylum,

8 withholding of removal, and CAT relief. See Paul v.

9 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

10 For the foregoing reasons, the petition for review is

11 DENIED. 

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk

14

15

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