17-252 Chen v. Sessions BIA Nelson, IJ A087 785 292 

### 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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 5 th**  **day of June, two thousand eighteen.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **JOSÉ A. CABRANES,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **YAN QI CHEN,** 13 Petitioner **,** 14 15 **v. 17-252** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** G. Victoria Calle, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Linda S. 26 Wernery, Assistant Director; 27 Thankful T. Vanderstar, Trial 28 Attorney, Office of Immigration 292 Litigation, United States 1 Department of Justice, Washington, 2 DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Yan Qi Chen, a native and citizen of the 9 People’s Republic of China, seeks review of a January 12, 10 2017, decision of the BIA affirming a March 22, 2016, decision 11 of an Immigration Judge (“IJ”) denying Chen’s application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture (“CAT”). In re Yan Qi Chen, No. 14

A 087 785 292 (B.I.A. Jan. 12, 2017), aff’g No. A 087 785 292 15 (Immig. Ct. N.Y. City Mar. 22, 2016). We assume the parties’ 16 familiarity with the underlying facts and procedural history 17 in this case. 18 We have reviewed the IJ’s decision as modified by the 19 BIA, reaching only the bases for the adverse credibility 20 ruling that the BIA adopted. See Xue Hong Yang v. U.S. Dep’t 21 of Justice , 426 F.3d 520, 522 (2d Cir. 2005). We review the 22 agency’s factual findings, including its adverse credibility 233 determination, for substantial evidence. See 8 U.S.C. 1 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165- 2 66 (2d Cir. 2008). 3

**I. Adverse Credibility**  4 The agency may, “[c]onsidering the totality of the 5 circumstances,” base an adverse credibility ruling on an 6 applicant’s “demeanor, candor, or responsiveness,” as well as 7 any inconsistencies within or between an applicant’s and 8 witness’s written and oral statements. 8 U.S.C. 9 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 10 determination unless . . . it is plain that no reasonable 11 fact-finder could make such an adve rse credibility ruling.” 12 Xiu Xia Lin , 534 F.3d at 167. 13 Substantial evidence supports the agency’s determination 14 that Chen’s testimony regarding the events in China was not 15 credible. The agency reasonably relied on the lack of 16 consistency between Chen’s testimony that he was arrested for 17 attending an underground church in 2007, and his application, 18 which identified his arrest as occurring in 2008. The agency 19 noted that this inconsistency may have been attributable to 20 an innocent cause such as nervousness, but it was compounded 214 by Chen’s testimony that his wife’s forced abortion took place 1 in 2006. This testimony contradicted his application as well 2 as his wife’s testimony and letter, which gave the date of 3 the abortion as November 2007. The agency reasonably 4 determined that Chen’s inability to remember the relevant 5 years of the two events that formed the basis of his claim 6 undermined his credibility. See Xian Tuan Ye v. Dep’t of 7 Homeland Sec. , 446 F.3d 289, 295 (2d Cir. 2006) (“[A] material 8 inconsistency in an aspect of [an applicant]’s story that 9 served as an example of the very persecution from which he 10 sought asylum . . . afforded substantial evidence to support 11 the adverse credibility finding.” (internal quotation marks 12 and citation omitted)). The negative demeanor finding, based 13 on Chen’s multiple long pauses and difficulty answering 14 questions, further supports the adv erse credibility ruling. 15
See 8 U.S.C. § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t 16 of Justice , 453 F.3d 99, 109 (2d Cir. 2006) (granting 17 particular deference to credibility findings based on 18 applicant’s demeanor). 19 Because the adverse credibility ruling is dispositive of 20 Chen’s past persecution claims, we do not reach the agency’s 215 alternative ruling that even if Chen is credible, the harm 1 Chen testified to did not rise to the level of persecution. 2 INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general rule 3 courts and agencies are not required to make findings on 4 issues the decision of which is unnecessary to the results 5 they reach.”). 6

**II. Well-Founded Fear**  7 The agency accepted that Chen currently practices 8 Christianity in the United States. To establish a well9 founded fear of persecution on this basis, Chen was required 10 to show that the Chinese government is “either aware . . . 11 or likely to become aware” of his practice of Christianity. 12 Hongsheng Leng v. Mukasey , 528 F.3d 135, 143 (2d Cir. 2008). 13 Chen argues that he met this burden by showing a pattern or 14 practice of persecution of Christians who are similarly 15 situated to him. See 8 C.F.R. § 1208.13(b)(2)(iii). 16 However, we decline to reach Chen’s pattern or practice claim 17 because, as the Government argues, he did not adequately raise 18 it before the IJ or BIA. S ee Lin Zhong v. U.S. Dep’t of 19 Justice , 480 F.3d 104, 122 (2d Cir. 2007) (providing that 20 judicially imposed issue exhaustion is mandatory); Foster v. 216 U.S. INS , 376 F.3d 75, 78 (2d Cir. 2004) (issues must 1 generally be raised before the BIA in order to be preserved 2 for judicial review). 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our rev iew, any stay of removal 5 that the Court previously granted in this petition is VACATED, 6 and any pending motion for a stay of removal in this petition 7 is DISMISSED as moot. Any pending request for oral argument 8 in this petition is DENIED in accordance with Federal Rule of 9 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 10 34.1(b). 11
FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court 14