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 PR OCEDURE 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.**  **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 30 th** **day of June, two thousand fifteen.** 4 5 **PRESENT:** 6 7 **JOHN M. WALKER, JR.,** 8 **BARRINGTON D. PARKER,** 9 **RICHARD C. WESLEY,** 10 Circuit Judges. 11

**_____________________________________** 12 13 **BING JUN CHEN,** 14 Petitioner**,** 15 16 **v. 14-2416** 17 **NAC** 18 19 **LORETTA E. LYNCH, UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent**.** 22

**_____________________________________** 23 24 **FOR PETITIONER:** Joshua Bardavid, New York, 25 New York. 26 27 **FOR RESPONDENT:** Benjamin C. Mizer, Acting 28 Assistant Attorney General; Claire 29L. Workman, Senior Litigation 1 Counsel; Scott M. Marconda, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Bing Jun Chen, a native and citizen of the 12 People’s Republic of China, seeks review of a June 9, 2014, 13 decision of the BIA affirming a December 14, 2012, decision 14 of an Immigration Judge (“IJ”) denying Chen’s application 15 for asylum, withholding of removal, and relief under the 16 Convention Against Torture (“CAT”). In re Bing Jun Chen, 17 No. A098 594 095 (B.I.A. June 9, 2014), aff’gNo. A098 594 18 095 (Immig. Ct. N.Y. City Dec. 14, 2012). We assume the 19 parties’ familiarity with the underlying facts and 20 procedural history in this case. 21 We have considered both the IJ’s and the BIA’s opinions 22 “for the sake of completeness.” Wangchuck v. DHS, 448 F.3d 23 524, 528 (2d Cir. 2006). The applicable standards of review 24

2are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia 1 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per 2 curiam). 3 For asylum applications like Chen’s, governed by the 4 REAL ID Act, the agency may, “[c]onsidering the totality of 5 the circumstances . . . base a credibility determination on 6 the demeanor, candor, or responsiveness of the applicant or 7 witness, the inherent plausibility of the applicant’s or 8 witness’s account,” and inconsistencies in an applicant’s 9 statements and other record evidence “without regard to 10 whether” they go “to the heart of the applicant’s claim.” 11 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163- 12 64. Here, the IJ’s adverse credibility determination is 13 based on substantial evidence. 14 The IJ reasonably relied on Chen’s border interview in 15 finding him not credible. This Court requires the agency to 16 “closely examine each . . . interview before concluding that 17 it represents a sufficiently accurate record of the alien’s 18 statements . . . in determining whether the alien is 19 credible.”Ramsameachire v. Ashcroft , 357 F.3d 169, 179 (2d 20 Cir. 2004). Here, the record of Chen’s interview merely 21 3summarizes his statements and does not provide a list of the 1 questions asked during the interview. However, an 2 interpreter was provided, and there is no indication from 3 the record of the interview that Chen had difficulties 4 understanding the interpreter. While the interview does not 5 indicate whether Chen was asked if he had any reason to fear 6 returning to China, he was asked why he entered the United 7 States. At this point, Chen stated that he came to seek 8 employment, not to seek refuge from persecution. Chen 9 testified that he was nervous during the interview, but an 10 applicant’s “mere recitation that he was nervous or felt 11 pressured during an airport interview will not automatically 12 prevent” the agency from relying on the interview for an 13 adverse credibility determination. Ming Zhang v. Holder, 14 585 F.3d 715, 725-26 (2d Cir. 2009). Under these 15 circumstances, the IJ reasonably relied on the border 16 interview. 17 Moreover, Chen’s statement that he came to seek work is 18 wholly inconsistent with his claim for asylum, in which he 19 insists that he came to the United States to flee 20 persecution. The IJ reasonably found that this 21 4inconsistency casts doubt on the entirety of Chen’s claim 1 and raises the question of whether the claim is fabricated. 2 Xian Tuan Ye v. Dep’t of Homeland Sec. , 446 F.3d 289, 295 3 (2d Cir. 2006) (per curiam). This inconsistency, therefore, 4 is itself sufficient to justify the IJ’s adverse credibility 5 finding. Id. The IJ also relied on more minor 6 inconsistencies between Chen and his wife’s testimony, which 7 are also supported by the record. Tu Lin v. Gonzales, 446 8 F.3d 395, 402 (2d Cir. 2006). 9 Chen argues that the IJ erred infailing to consider 10 whether his testimony was rehabilitated by the fine receipt 11 and medical records he submitted to corroborate his 12 detention, beating, and fine in China. This Court presumes 13 that “an IJ has taken into account all the evidence before 14 [her], unless the record compellingly suggests otherwise.” 15 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 16 n.17 (2d Cir. 2006). Even assuming the IJ erred in failing 17 to explicitly consider the fine receipt and medical 18 evidence, remand would be futile in light of the serious 19 inconsistencies supporting the IJ’s adverse credibility 20 determination, inconsistencies that call into question the 21 5veracity of Chen’s entire claim. Cao He Lin v. U.S. Dep’t 1 of Justice, 428 F.3d 391, 401 (2d Cir. 2005). In any event, 2 the IJ explicitly stated that she considered Chen’s 3 evidence. 4 Accordingly, the IJ’s adverse credibility determination 5 is based on substantial evidence. This adverse credibility 6 finding was sufficient to deny asylum, withholding of 7 removal, and CAT relief, as all three of Chen’s claims were 8 based on the same factual predicate. Paul v. Gonzales, 444 9 F.3d 148, 156-57 (2d Cir. 2006) (withholding); Xue Hong Yang 10 v. U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d Cir. 2005) 11 (CAT). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 19 20 21 6Federal Rule of Appellate Procedure 34(a)(2), and Second 1 Circuit Local Rule 34.1(b). 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 6

7