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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 6 th** **day of May, two thousand fourteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **GERARD E. LYNCH,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges **.** 10

**_____________________________________** 11 12 **XUELING CHEN,** 13 Petitioner**,** 14 15 **v. 13-642** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Ramesh K. Shrestha, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 25 **General; Anthony C. Payne, Senior** 26 **Litigation Counsel; Liza S. Murcia,** 27 **Attorney, Office of Immigration** 28 **Litigation, United States Department** 29 **of Justice, Washington, D.C.** 30UPON 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 Xueling Chen, a native and citizen of the People’s 5 Republic of China, seeks review of a January 29, 2013, 6 decision of the BIA affirming an Immigration Judge’s (“IJ”) 7 August 11, 2011, decision denying her application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Xueling Chen , No. 10 A087 633 206 (B.I.A. Jan. 29, 2013), aff’gNo. A087 633 206 11 (Immig. Ct. N.Y. City Aug. 11, 2011). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history of this case. 14 Under the circumstances of this case, we have reviewed 15 the decision of the IJ as modified and supplemented by the 16

BIA. See Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 17 520, 522 (2d Cir. 2005);Yan Chen v. Gonzales , 417 F.3d 268, 18 271 (2d Cir. 2005). The applicable standards of review are 19 well established. See8 U.S.C. § 1252(b)(4)(B);see also 20 Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 21

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2For applications such as Chen’s, governed by the REAL 1 ID Act of 2005, the agency may, “[c]onsidering the totality 2 of the circumstances,” base a credibility finding on the 3 applicant’s “demeanor, candor, or responsiveness,” the 4 plausibility of her account, and inconsistencies in her 5 statements, regardless of whether such inconsistencies go 6 “to the heart of the applicant’s claim.” 8 U.S.C. 7 § 1158(b)(1)(B)(iii). We “defer to an IJ’s credibility 8 determination unless, from the totality of the 9 circumstances, it is plain that no reasonable fact-finder 10 could make” such a ruling. Xiu Xia Lin v. Mukasey,534 F.3d 11 162, 167 (2d Cir. 2008). 12 Here, the IJ reasonably based his adverse credibility 13 determination on Chen’s inconsistent testimony, 14 inconsistencies between her testimony and that of her uncle, 15 and her omission of information from her asylum application. 16 As the agency found, Chen gave confusing and inconsistent 17 testimony regarding her passports, initially stating that 18 she only ever had three passports, but later testifying that 19 she obtained a fourth passport, a copy of which she used to 20 obtain a fifth passport while she was in the United States. 21 In addition, although Chen testified to obtaining the fifth 22

3passport in May 2009, her July 2009 asylum application 1 stated she did not have a passport. The agency also 2 reasonably relied on inconsistencies between the testimony 3 of Chen and her witness. For example, Chen testified that 4 she had never been to Alabama, contradicting her uncle’s 5 testimony that she worked for months in his Alabama 6 restaurant. While tangential to Chen’s asylum claim, these 7 inconsistencies are numerous and, considering the totality 8 of the circumstances, support the agency’s adverse 9 credibility determination. See8 U.S.C. 10 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,534 F.3d 11 at 167 (providing that an IJ may support an adverse 12 credibility determination with “any inconsistency or 13 omission”); Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 14 2007) (“a single instance of false testimony may . . . 15 infect the balance of the alien’s uncorroborated or 16 unauthenticated evidence”). 17 Moreover, the agency reasonably rejected Chen’s 18 explanation that she was confused by the aggressive 19 questioning by the IJ and government attorney. The agency 20 reasonably found that the record does not reflect 21 questioning that was overly persistent, but simply efforts 22

4by the IJ and attorney to elicit responsive answers to their 1 questions. See Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d 2 Cir. 2005). 3 As to demeanor, we defer to the IJ’s finding that 4 Chen’s hesitant and evasive testimony affected her 5 credibility as that finding was connected to Chen’s 6 confusing and inconsistent testimony regarding her 7 passports. See Li Hua Lin v. U.S. Dep’t of Justice , 453 8 F.3d 99, 109 (2d Cir. 2006)

. 9 Given these inconsistencies and Chen’s hesitant 10 demeanor, the totality of the circumstances supports the 11 agency’s adverse credibility determination. Although Chen 12 submitted corroborating letters from her relatives and a 13 photograph purportedly of her practicing Falun Gong, the IJ 14 reasonably found that evidence insufficient to establish her 15 eligibility for relief absent credible testimony, as the 16 authors were not available for cross-examination and Chen 17 could not identify the origin of the photograph. See Xiao 18 Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 19 2006) ( the weight accorded to documentary evidence lies 20 largely within agency’s discretion) ; see also Matter of H-L21

H- & Z-Y-Z- , 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving 22 diminished evidentiary weight to letters from “relatives and 23 5friends,” because they were from interested witnesses not 1 subject to cross-examination), abrogated on other grounds by 2 Hui Lin Huang v. Holder , 677 F.3d 130 (2d Cir. 2012). 3 As the only evidence of a threat to Chen’s life or 4 freedom, or likelihood of torture, depended upon her 5 credibility, the adverse credibility determination 6 necessarily precludes success on her claims for asylum, 7 withholding of removal, and CAT relief. See Paul v. 8 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 9 For the foregoing reasons, the petition for review is 10

DENIED. 11
FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14 15

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