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.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 6th 4 day of November, two thousand fourteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 Chief Judge,

9 RICHARD C. WESLEY

10 GERARD E. LYNCH,

11 Circuit Judges.

12 _____________________________________

13

14 ENZHEN CHEN,

15 Petitioner, 

16

17 v. 13-3214

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Edward J. Cuccia, New York, NY. 

25

26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

27 General; Douglas E. Ginsburg,

28 Assistant Director; Andrew B.

29 Insenga, Trial Attorney, Office of
1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Enzhen Chen, a native and citizen of the People’s

10 Republic of China, seeks review of a July 30, 2013, decision

11 of the BIA affirming the April 13, 2012, decision of an

12 Immigration Judge (“IJ”) which denied her application for

13 asylum, withholding of removal, and relief under the

14 Convention Against Torture (“CAT”). In re Enzhen Chen, No.

15 A200 813 000 (B.I.A. July 30, 2013), aff’g No. A200 813 000

16 (Immig. Ct. N.Y. City Apr. 13, 2012). We assume the

17 parties’ familiarity with the underlying facts and

18 procedural history in this case.

19 Under the circumstances of this case, we have reviewed

20 both the IJ’s and the BIA’s decisions. See Zaman v.

21 Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable

22 standards of review are well established. See 8 U.S.C.

23 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

24 (2d Cir. 2009).

25

2
1 For asylum applications, like Chen’s, governed by the

2 REAL ID Act of 2005, the agency may, “[c]onsidering the

3 totality of the circumstances,” base a credibility finding

4 on an asylum applicant’s “demeanor, candor, or

5 responsiveness,” the plausibility of her account, and

6 inconsistencies in his statements, “without regard to

7 whether” they go “to the heart of the applicant’s claim,” so

8 long as they reasonably support an inference that the

9 applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii);

10 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)

11 (per curiam). “We defer therefore to an IJ’s credibility

12 determination unless, from the totality of the

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

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

15 Lin, 534 F.3d at 167. In this case, the agency reasonably

16 based its adverse credibility determination on the

17 inconsistencies in Chen’s story regarding the sole basis of

18 her application: a police raid on her church in China. See

19 Xian Tuan Ye v. DHS, 446 F.3d 289, 295 (2d Cir. 2006)

20 (holding that a material inconsistency regarding the alleged

21 persecution at the basis of the claim constitutes

22 substantial evidence).

3
1 The IJ reasonably found that Chen was not credible

2 because her testimony was inconsistent with statements in

3 her asylum application and the story she told at her

4 credible fear interview. Chen’s story changed at each

5 telling. At her credible fear interview, she stated that

6 she feared that a police officer wanted to harm her because

7 she embarrassed him by accidentally knocking him down during

8 a raid of her house church and that everyone laughed at him. 

9 She did not believe that anyone would harm her because of

10 her religion. Later, at the merits hearing, Chen testified

11 that, in March 2010, three police officers entered her house

12 church and told her and other practitioners that their

13 church was illegal. She testified that they all backed away

14 from the police, but that she felt somebody push her from

15 behind and she bumped into one of the officers, he yelled,

16 said they were rebelling, and raised his baton. She

17 testified that she ran away, and thirteen (of the eighteen

18 at the meeting) similarly escaped; the others were arrested. 

19 When questioned about the inconsistencies between what she

20 told the asylum officer in her credible fear interview and

21 her testimony, Chen did not deny that she made those

22 representations to the asylum officer, and could not explain

4
1 whether she had actually knocked the officer down or not. 

2 Instead, she testified that she was confused and could not

3 recall. She later testified that the police officer did not

4 fall, but almost fell. These inconsistences go to the heart

5 of Chen’s claim, and provide adequate support for the

6 adverse credibility determination. Xian Tuan Ye, 446 F.3d

7 at 295-96. 

8 The other inconsistencies in Chen’s testimony add

9 further support for the IJ’s adverse credibility

10 determination. Even though they do not go to “the heart of

11 the applicant’s claim,” as they relate to a prior attempt to

12 gain status in the United States and Chen’s father’s

13 immigration status, Chen’s inconsistent testimony raises

14 questions about Chen’s intent in coming to the United

15 States. Given the unexplained inconsistencies related to

16 the bases of her claim, the totality of the circumstances

17 supports the agency’s adverse credibility determination, and

18 we defer to that finding. See 8 U.S.C.

19 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

20 Because the only evidence of a threat to Chen’s life or

21 freedom depended upon her credibility, the adverse

22 credibility determination in this case necessarily precludes

23 success on her claims for asylum, withholding of removal,

5
1 and CAT relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

2 Cir. 2006).

3 For the foregoing reasons, the petition for review is

4 DENIED.

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk

7

8

6