13-3214 Chen v. Holder BIA Poczter, IJ A200 813 000 

### 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**  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 6 th** **day of November, two thousand fourteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **RICHARD C. WESLEY** 9 **GERARD E. LYNCH,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **ENZHEN CHEN,** 14 Petitioner**,** 15 16 **v. 13-3214** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER: Edward J. Cuccia, New York, NY.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 26 **General; Douglas E. Ginsburg,** 27 **Assistant Director; Andrew B.** 28 **Insenga, Trial Attorney, Office of** 29**Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 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 Enzhen Chen, a native and citizen of the People’s 9 Republic of China, seeks review of a July 30, 2013, decision 10 of the BIA affirming the April 13, 2012, decision of an 11 Immigration Judge (“IJ”) which denied her application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture (“CAT”). In re Enzhen Chen , No. 14 A200 813 000 (B.I.A. July 30, 2013),aff’gNo. A200 813 000 15 (Immig. Ct. N.Y. City Apr. 13, 2012). We assume the 16 parties’ familiarity with the underlying facts and 17 procedural history in this case. 18 Under the circumstances of this case, we have reviewed 19 both the IJ’s and the BIA’s decisions. See Zaman v. 20 Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable 21 standards of review are well established. See8 U.S.C. 22 § 1252(b)(4)(B);Yanqin Weng v. Holder , 562 F.3d 510, 513 23 (2d Cir. 2009). 24

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2For asylum applications, like Chen’s, governed by the 1 REAL ID Act of 2005, the agency may, “[c]onsidering the 2 totality of the circumstances,” base a credibility finding 3 on an asylum applicant’s “demeanor, candor, or 4 responsiveness,” the plausibility of her account, and 5 inconsistencies in his statements, “without regard to 6 whether” they go “to the heart of the applicant’s claim,” so 7 long as they reasonably support an inference that the 8 applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); 9 see Xiu Xia Lin v. Mukasey,534 F.3d 162, 167 (2d Cir. 2008) 10 (per curiam). “We defer therefore to an IJ’s credibility 11 determination unless, from the totality of the 12 circumstances, it is plain that no reasonable fact-finder 13 could make such an adverse credibility ruling.” Xiu Xia 14 Lin , 534 F.3d at 167. In this case, the agency reasonably 15 based its adverse credibility determination on the 16 inconsistencies in Chen’s story regarding the sole basis of 17 her application: a police raid on her church in China. See 18 Xian Tuan Ye v. DHS , 446 F.3d 289, 295 (2d Cir. 2006) 19 (holding that a material inconsistency regarding the alleged 20 persecution at the basis of the claim constitutes 21 substantial evidence). 22

3The IJ reasonably found that Chen was not credible 1 because her testimony was inconsistent with statements in 2 her asylum application and the story she told at her 3 credible fear interview. Chen’s story changed at each 4 telling. At her credible fear interview, she stated that 5 she feared that a police officer wanted to harm her because 6 she embarrassed him by accidentally knocking him down during 7 a raid of her house church and that everyone laughed at him. 8 She did not believe that anyone would harm her because of 9 her religion. Later, at the merits hearing, Chen testified 10 that, in March 2010, three police officers entered her house 11 church and told her and other practitioners that their 12 church was illegal. She testified that they all backed away 13 from the police, but that she felt somebody push her from 14 behind and she bumped into one of the officers, he yelled, 15 said they were rebelling, and raised his baton. She 16 testified that she ran away, and thirteen (of the eighteen 17 at the meeting) similarly escaped; the others were arrested. 18 When questioned about the inconsistencies between what she 19 told the asylum officer in her credible fear interview and 20 her testimony, Chen did not deny that she made those 21 representations to the asylum officer, and could not explain 22

4whether she had actually knocked the officer down or not. 1 Instead, she testified that she was confused and could not 2 recall. She later testified that the police officer did not 3 fall, but almost fell. These inconsistences go to the heart 4 of Chen’s claim, and provide adequate support for the 5 adverse credibility determination. Xian Tuan Ye , 446 F.3d 6 at 295-96. 7 The other inconsistencies in Chen’s testimony add 8 further support for the IJ’s adverse credibility 9 determination. Even though they do not go to “the heart of 10 the applicant’s claim,” as they relate to a prior attempt to 11 gain status in the United States and Chen’s father’s 12 immigration status, Chen’s inconsistent testimony raises 13 questions about Chen’s intent in coming to the United 14 States. Given the unexplained inconsistencies related to 15 the bases of her claim, the totality of the circumstances 16 supports the agency’s adverse credibility determination, and 17 we defer to that finding. See8 U.S.C. 18 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 19 Because the only evidence of a threat to Chen’s life or 20 freedom depended upon her credibility, the adverse 21 credibility determination in this case necessarily precludes 22 success on her claims for asylum, withholding of removal, 23 5and CAT relief. Paul v. Gonzales , 444 F.3d 148, 156-57 (2d 1 Cir. 2006). 2 For the foregoing reasons, the petition for review is 3

DENIED. 4
FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 8

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