14-2416

Chen v. Lynch

BIA

Poczter, IJ

A098 594 095

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

TO 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 30th 4 day of June, two thousand fifteen.

5

6 PRESENT:

7

8 JOHN M. WALKER, JR.,

9 BARRINGTON D. PARKER,

10 RICHARD C. WESLEY,

11 Circuit Judges.

12 _____________________________________

13

14 BING JUN CHEN,

15 Petitioner,

16

17 v. 14-2416

18 NAC

19

20 LORETTA E. LYNCH, UNITED STATES

21 ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: Joshua Bardavid, New York, 

26 New York.

27

28 FOR RESPONDENT: Benjamin C. Mizer, Acting

29 Assistant Attorney General; Claire
1 L. Workman, Senior Litigation

2 Counsel; Scott M. Marconda, Trial

3 Attorney, Office of Immigration

4 Litigation, United States

5 Department of Justice, Washington,

6 D.C.

7

8 UPON DUE CONSIDERATION of this petition for review of a

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

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

11 is DENIED.

12 Petitioner Bing Jun Chen, a native and citizen of the

13 People’s Republic of China, seeks review of a June 9, 2014,

14 decision of the BIA affirming a December 14, 2012, decision

15 of an Immigration Judge (“IJ”) denying Chen’s application

16 for asylum, withholding of removal, and relief under the

17 Convention Against Torture (“CAT”). In re Bing Jun Chen,

18 No. A098 594 095 (B.I.A. June 9, 2014), aff’g No. A098 594

19 095 (Immig. Ct. N.Y. City Dec. 14, 2012). We assume the

20 parties’ familiarity with the underlying facts and

21 procedural history in this case.

22 We have considered both the IJ’s and the BIA’s opinions

23 “for the sake of completeness.” Wangchuck v. DHS, 448 F.3d

24 524, 528 (2d Cir. 2006). The applicable standards of review

2
1 are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia

2 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per

3 curiam). 

4 For asylum applications like Chen’s, governed by the

5 REAL ID Act, the agency may, “[c]onsidering the totality of

6 the circumstances . . . base a credibility determination on

7 the demeanor, candor, or responsiveness of the applicant or

8 witness, the inherent plausibility of the applicant’s or

9 witness’s account,” and inconsistencies in an applicant’s

10 statements and other record evidence “without regard to

11 whether” they go “to the heart of the applicant’s claim.” 

12 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

13 64. Here, the IJ’s adverse credibility determination is

14 based on substantial evidence.

15 The IJ reasonably relied on Chen’s border interview in

16 finding him not credible. This Court requires the agency to

17 “closely examine each . . . interview before concluding that

18 it represents a sufficiently accurate record of the alien’s

19 statements . . . in determining whether the alien is

20 credible.” Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d

21 Cir. 2004). Here, the record of Chen’s interview merely

3
1 summarizes his statements and does not provide a list of the

2 questions asked during the interview. However, an

3 interpreter was provided, and there is no indication from

4 the record of the interview that Chen had difficulties

5 understanding the interpreter. While the interview does not

6 indicate whether Chen was asked if he had any reason to fear

7 returning to China, he was asked why he entered the United

8 States. At this point, Chen stated that he came to seek

9 employment, not to seek refuge from persecution. Chen

10 testified that he was nervous during the interview, but an

11 applicant’s “mere recitation that he was nervous or felt

12 pressured during an airport interview will not automatically

13 prevent” the agency from relying on the interview for an

14 adverse credibility determination. Ming Zhang v. Holder,

15 585 F.3d 715, 725-26 (2d Cir. 2009). Under these

16 circumstances, the IJ reasonably relied on the border

17 interview. 

18 Moreover, Chen’s statement that he came to seek work is

19 wholly inconsistent with his claim for asylum, in which he

20 insists that he came to the United States to flee

21 persecution. The IJ reasonably found that this

4
1 inconsistency casts doubt on the entirety of Chen’s claim

2 and raises the question of whether the claim is fabricated. 

3 Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295

4 (2d Cir. 2006) (per curiam). This inconsistency, therefore,

5 is itself sufficient to justify the IJ’s adverse credibility

6 finding. Id. The IJ also relied on more minor

7 inconsistencies between Chen and his wife’s testimony, which

8 are also supported by the record. Tu Lin v. Gonzales, 446

9 F.3d 395, 402 (2d Cir. 2006). 

10 Chen argues that the IJ erred in failing to consider

11 whether his testimony was rehabilitated by the fine receipt

12 and medical records he submitted to corroborate his

13 detention, beating, and fine in China. This Court presumes

14 that “an IJ has taken into account all the evidence before

15 [her], unless the record compellingly suggests otherwise.” 

16 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338

17 n.17 (2d Cir. 2006). Even assuming the IJ erred in failing

18 to explicitly consider the fine receipt and medical

19 evidence, remand would be futile in light of the serious

20 inconsistencies supporting the IJ’s adverse credibility

21 determination, inconsistencies that call into question the

5
1 veracity of Chen’s entire claim. Cao He Lin v. U.S. Dep’t

2 of Justice, 428 F.3d 391, 401 (2d Cir. 2005). In any event,

3 the IJ explicitly stated that she considered Chen’s

4 evidence.

5 Accordingly, the IJ’s adverse credibility determination

6 is based on substantial evidence. This adverse credibility

7 finding was sufficient to deny asylum, withholding of

8 removal, and CAT relief, as all three of Chen’s claims were

9 based on the same factual predicate. Paul v. Gonzales, 444

10 F.3d 148, 156-57 (2d Cir. 2006) (withholding); Xue Hong Yang

11 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005)

12 (CAT).

13 For the foregoing reasons, the petition for review is

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

15 removal that the Court previously granted in this petition

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

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

18 oral argument in this petition is DENIED in accordance with

19

20

21

6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second

2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5

6

7