10-2711-ag

Chen v. Holder

BIA

Morace, IJ

A089 008 816

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 9th 4 day of September, two thousand eleven.

5

6 PRESENT:

7 RALPH K. WINTER,

8 JOSÉ A. CABRANES,

9 ROBERT D. SACK,

10 Circuit Judges.

11 _______________________________________

12

13 MAN LI CHEN,

14 Petitioner, 

15

16 v. 10-2711-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________ 22

23 FOR PETITIONER: Adedayo O. Idowu, New York, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Thomas B. Fatouros, Senior

28 Litigation Counsel; Kathryn M.

29 McKinney, Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Man Li Chen, a native and citizen of China,

6 seeks review of the June 9, 2010, decision of the BIA

7 affirming the June 25, 2008, decision of Immigration Judge

8 (“IJ”) Philip Morace denying his application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Man Li Chen, No. A089 008

11 816 (B.I.A. June 9, 2010), aff’g No. A089 008 816 (Immig.

12 Ct. N.Y. City June 25, 2008). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 of this case.

15 We have reviewed the IJ’s decision. See Mei Chai Ye v.

16 U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007). 

17 The applicable standards of review are well-established. 

18 See 8 U.S.C. 

19 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

20 162, 165-66 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529

21 F.3d 99, 110 (2d Cir. 2008). We “defer to an IJ’s

22 credibility determination unless, from the totality of the
3

1 circumstances, it is plain that no reasonable fact-finder

2 could make such an adverse credibility ruling.” Xiu Xia

3 Lin, 534 F.3d at 165-66. For asylum applications governed

4 by the REAL ID Act, the agency may, “[c]onsidering the

5 totality of the circumstances, . . . base a credibility

6 determination on the demeanor, candor, or responsiveness of

7 the applicant . . ., the consistency between the applicant’s

8 or witness’s written and oral statements . . . without

9 regard to whether an inconsistency goes to the heart of the

10 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

11 Lin, 534 F.3d at 163-64. 

12 Substantial evidence supports the IJ’s adverse

13 credibility determination. In finding Chen not credible,

14 the IJ reasonably relied in part on Chen’s confused demeanor

15 while testifying during cross-examination. See 8 U.S.C. 

16 § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d

17 77, 81 n.1 (2d Cir. 2005). The IJ’s demeanor finding was

18 further supported by specific examples of contradictory

19 testimony. See Li Hua Lin v. U.S. Dep’t of Justice, 453

20 F.3d 99, 109 (2d Cir. 2006). Indeed, as the IJ found, Chen

21 testified inconsistently regarding the length of time he

22 remained in hiding following his release from detention. 
4

1 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

2 F.3d at 166-67. Moreover, a reasonable fact finder would

3 not be compelled to credit Chen’s explanations for his

4 inconsistent statements. See Majidi, 430 F.3d at 80-81. 

5 Thus, we find no error in the IJ’s denial of Chen’s

6 application for asylum, withholding of removal, and CAT

7 relief on credibility grounds. See Paul v. Gonzales, 444

8 F.3d 148, 156 (2d Cir. 2006). 

9 For the foregoing reasons, the petition for review is

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

11 removal that the Court previously granted in this petition

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

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

14 oral argument in this petition is DENIED in accordance with

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

16 Circuit Local Rule 34.1(b).

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

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