10-1458-ag

Chen v. Holder

BIA

Nelson, IJ

A098 633 024

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 for

the Second Circuit, held at the Daniel Patrick Moynihan United

States Courthouse, 500 Pearl Street, in the City of New York, on

the 4th day of May, two thousand eleven.

PRESENT:

JON O. NEWMAN,

PIERRE N. LEVAL,

JOSÉ A. CABRANES,

 Circuit Judges.

_______________________________________

XU DONG CHEN,

Petitioner,

v. 10-1458-ag

NAC

ERIC H. HOLDER, JR., U.S. ATTORNEY 

GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Michael Brown, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Richard M. Evans, Assistant Director;

Aliza B. Alyeshmerni, Trial Attorney,

Office of Immigration Litigation, Civil

Division, United States Department of

Justice, Washington, D.C.
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UPON DUE CONSIDERATION of this petition for review of a

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

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

DISMISSED in part and DENIED in part.

Petitioner Xu Dong Chen, a native and citizen of the People’s

Republic of China, seeks review of a March 31, 2010, order of the

BIA affirming the May 29, 2008, decision of Immigration Judge

(“IJ”) Barbara A. Nelson, pretermitting his asylum application and

denying his application for withholding of removal and relief

under the Convention Against Torture (“CAT”). In re Xu Dong Chen,

No. A098 633 024 (B.I.A. Mar. 31, 2010), aff’g No. A098 633 024

(Immig. Ct. N.Y. City May 29, 2008). We assume the parties’

familiarity with the underlying facts and procedural history of

the case. 

Under the circumstances of this case, we have reviewed both

the IJ’s and the BIA’s opinions. See Yun-Zui Guan v. Gonzales,

432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of

review are well-established. See 8 U.S.C. § 1252(b)(4)(B); see

also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008);

Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

We are without jurisdiction to consider Chen’s challenge to

the IJ’s pretermission of his asylum application because Chen

challenges only the IJ’s factual determination that he did not
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demonstrate his date of entry or changed circumstances excusing

the untimely filing of his asylum application. See 8 U.S.C. §

1158(a)(3); see also Xiao Ji Chen v. U.S. Dep’t of Justice , 471

F.3d 315, 329 (2d Cir. 2006). Moreover, as Chen has not raised

any challenges to the denial of CAT relief, or to the denial of

any relief based on his claimed violation of the family planning

policy or his illegal exit from China, we review only Chen’s

challenge to the agency’s denial of his application for

withholding of removal with regard to his Falun Gong claim.

The agency determined both that Chen was not credible and,

even if credible, that he had not meet his burden of proof. The

IJ’s adverse credibility determination is supported by substantial

evidence, including: (1) Chen’s demeanor; (2) several implausible

aspects of Chen’s testimony; and (3)inconsistencies in Chen’s

testimony. The IJ reasonably relied on Chen’s testimony to make

a demeanor finding, noting that Chen: (1) was extremely hesitant

and unresponsive in answering questions; (2)clearly memorized his

story and attempted to repeat it by rote to the court; (3) had

difficulties with his testimony upon variation from a script; and

(4) could not remember great portions about how he traveled to the

United States. The IJ’s ultimate judgment regarding the

impression that Chen conveyed, in light of his testimony, merits

deference. See Majidi v. Gonzales, 430 F.3d 77, 81, n.1. (2d Cir.

2005).
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The IJ further found that several aspects of Chen’s testimony

implausible, including that: (1) Chen genuinely practiced Falun

Gong as he failed to identify the correct exercise that he was

doing in photographs taken at a Falun Gong event; and (2) although

Chen knew a villager informed the Chinese government of his Falun

Gong activities, he did not know the villager’s name or gender.

In light of Chen’s testimony that he practiced Falun Gong once a

week from April 2007 until the time of his hearing and that he

only knew a villager had reported him because his family told him,

the IJ could reasonably infer from these facts, “viewed in light

of common sense and ordinary experience,” that the particular

aspects of Chen’s testimony were implausible. Siewe v. Gonzales,

480 F.3d 160, 168-69 (2d Cir. 2007).

Additionally, the IJ reasonably relied on inconsistencies

between Chen’s testimony and the evidence he submitted as: (1)

Chen initially testified that the first Falun Gong activity he

participated in was in September 2006, predating his claimed date

of arrival in the United States, but later testified that the

event took place in September 2007; and (2) when Chen was asked

how he attended a Falun Gong event in New York City, he initially

testified that he and his sister took a car to the event, but upon

further questioning, he testified that he walked to the event.

Because the IJ was entitled to rely on any discrepancy in finding

Chen not credible, the IJ properly relied on these
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inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu

Xia Lin, 534 F.3d at 166-67 n.3. Furthermore, the agency

reasonably declined to credit Chen’s explanations that he misspoke

or that his testimony was not actually inconsistent. See Majidi,

430 F.3d at 80-81 (emphasizing that the agency need not credit an

applicant’s explanations for inconsistent testimony unless those

explanations would compel a reasonable fact-finder to do so).

Finally, the agency reasonably concluded that Chen did not

meet his burden of proof. The IJ gave limited weight to the

corroborating evidence that Chen submitted, including two letters

from his mother and an unauthenticated village committee

certificate regarding the government’s knowledge of his Falun Gong

practices. The IJ reasonably questioned the evidence as the

second letter appeared to have been prepared for litigation and

the village certificate was unauthenticated and not supported by

independent evidence. See Qin Wen Zheng v. Gonzales, 500 F.3d

143, 149 (2d Cir. 2007) (BIA did not abuse discretion declining

to credit a document purportedly sent by local government

officials and requiring an alien to surrender to the authorities

where the document was facially questionable).

Under all the circumstances, the adverse credibility

determination was supported by substantial evidence. See 8 U.S.C.

§ 1158(b)(1)(B)(iii). Because the IJ reasonably concluded that

Chen was not credible as to his claim of a well-founded fear of
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persecution, the adverse credibility determination in this case

necessarily precludes success on his claim for withholding of

removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part. As we have completed our

review, any stay of removal that the Court previously granted in

this petition is VACATED, and any pending motion for a stay of

removal in this petition is DISMISSED as moot. Any pending request

for oral argument in this petition is DENIED in accordance with

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

Local Rule 34.1(b).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk