17-611 Chen v. Whitaker BIA Christensen, IJ A205 727 791 A205 846 586 

### 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 United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 27 th**  **day of December, two thousand eighteen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **JOSÉ A. CABRANES,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **HUI CHEN, QIANG CHEN,** 13 Petitioners **,** 14 15 **v. 17-611** 16 **NAC** 17 **MATTHEW G. WHITAKER, ACTING** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONERS:** Aileen Shao, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; M. Jocelyn Lopez 26 Wright, Senior Litigation Counsel; 27 Lori B. Warlick, Trial Attorney, 28 Office of Immigration Litigation, 29 United States Department of 30 Justice, Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioners Hui Chen and Qiang Chen, natives and citizens 5 of the People’s Republic of China, seek review of a February 6 1, 2017, decision of the BIA affirming a February 18, 2016, 7 decision of an Immigration Judge (“IJ”) denying their 8 applications for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Hui 10 Chen, Qiang Chen, Nos. A205 727 791, A205 846 586 (B.I.A. 11 Feb. 1, 2017), aff’g Nos. A205 727 791, A205 846 586 (Immig. 12 Ct. N.Y. City Feb. 18, 2016). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Wangchuck v. Dep’t of Homeland Security , 448 18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 19 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 20 Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). 21 “Considering the totality of the circumstances, and all 22 relevant factors, a trier of fact may base a credibility 233 determination on . . . the inherent plausibility of the 1 applicant’s or witness’s account, the consistency between the 2 applicant’s or witness’s written and oral statements . . . , 3 the internal consistency of each such statement, [and] the 4 consistency of such statements with other evidence of record 5 . . . without regard to whether an inconsistency, inaccuracy, 6 or falsehood goes to the heart of the applicant’s claim.” 7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163- 8 64. Substantial evidence supports the agency’s determination 9 that Hui and Qiang were not credible as to their claims that 10 police detained Hui and targeted Qiang on account of their 11 religious practice in China and that they continue to attend 12 church in the United States. 13 In finding Hui and Qiang not credible, the agency 14 reasonably relied on their inconsistent statements regarding 15 each other’s experiences with religion and police in China. 16
See 8 U.S.C. § 1158(b)(1)(B)(iii). Hui testified that he 17 knew his brother was Christian and had been threatened with 18 arrest in China, but he did not mention these facts in his 19 asylum application even though he was explicitly asked to do 20

so. See Hong Fei Gao v. Sessions , 891 F.3d 67, 78 (2d Cir. 21 2018) (“[T]he probative value of a witness’s . . . silence on 22 particular facts depends on whether those facts are ones the 234 witness would reasonably have been expected to disclose.”). 1 Similarly, Qiang testified that he w as aware of his brother’s 2 religion and detentions but failed to disclose them in his 3 own application. See id. The agency was not compelled to 4 credit their explanation that they omitted this information 5 because they do not get along or communicate given that they 6 knew about each other’s troubles despite their lack of 7 communication. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d 8 Cir. 2005) (“A petitioner must do more than offer a plausible 9 explanation for his inconsistent statements to secure relief; 10 he must demonstrate that a reasonable fact-finder would be 11 compelled to credit his testimony.” (internal quotations 12 omitted)). The agency also reasonably relied on the 13 implausibility that Hui and Qiang would not mention each other 14 in their asylum applications when they attended underground 15 churches in the same village during the same period, were 16 confronted by police for attending church within months of 17 each other, and fled China for the United States three days 18 apart with the help of the same smuggler. See Wensheng Yan 19 v. Mukasey , 509 F.3d 63, 66-68 (2d Cir. 2007) (recognizing 20 that adverse credibility determination may be based on 21 inherent implausibility in applicant’s story if the “finding 22 is tethered to record evidence” or based on common sense). 235 The agency also reasonably found that Hui and Qiang’s 1 mother’s letter, which was submitted in support of Hui’s 2 application, omitted any mention that Qiang was Christian or 3 that he was wanted by police for an attack on a police officer 4 during a raid on his church. See Hong Fei Gao , 891 F.3d at 5 82 (agency did not err in relying on omission of applicant’s 6 beating in detention from mother’s letter because letter 7 “discusse[d] other post-arrest events”); see also Xiu Xia 8 Lin , 534 F.3d at 166-67 & n.3. The agency was not compelled 9 to credit Qiang’s explanation that his parents are not 10 educated given that his mother managed to prepare a letter 11 for Hui. See Majidi , 430 F.3d at 80. 12 Having questioned Hui’s and Qiang’s credibility, the 13 agency reasonably relied further on their failure to 14 rehabilitate their testimony with reliable corroborating 15 evidence. “An applicant’s failure to corroborate his or her 16 testimony may bear on credibility, because the absence of 17 corroboration in general makes an applicant unable to 18 rehabilitate testimony that has already been called into 19 question.” Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 20 2007). The agency did not err in declining to afford weight 21 to their mother’s letter, which was unsworn and from an 22 interested party who was not available for cross-examination. 236 See Y.C. v. Holder , 741 F.3d 324, 334 (2d Cir. 2013) 1 (deferring to agency’s decision to afford little weight to 2 relative’s letter from China because it was unsworn and from 3 an interested witness). The agency reasonably declined to 4 credit Hui’s handwritten detention certificates and fine 5 receipt because they were not authenticated by any means. 6 See Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 341- 7 42 (2d Cir. 2006) (holding that determination of the weight 8 of evidence is largely matter of agency discretion); see also 9 Matter of H-L-H- & Z-Y-Z- , 25 I. & N. Dec. 209, 214-16 & n.5 10 (B.I.A. 2010) (declining to credit village committee notices 11 that were unauthenticated, unsigned, and prepared for 12 purposes of removal proceedings), overruled on other grounds 13 by Hui Lin Huang v. Holder , 677 F.3d 130, 133-38 (2d Cir. 14 2012). Further, Hui and Qiang did not submit any evidence 15 from their churches or from fellow church members 16 corroborating their church attendance in either China or the 17 United States. 18 Given the inconsistencies and lack of reliable 19 corroboration, substantial evidence supports the agency’s 20 adverse credibility determination. See 8 U.S.C. 21 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 F.3d at 22 163-64. Contrary to Hui and Qiang’s argument, the adverse 237 credibility determination applied not only to their 1 testimony about past events but extended to their claimed 2 fear of future persecution because the agency did not 3 credit their testimony that they are practicing Christians. 4 Accordingly, the adverse credibility determination was 5 dispositive of asylum, withholding of removal, and CAT 6 relief. See Paul v. Gonzales , 444 F.3d 148, 156-57 (2d 7 Cir. 2006). 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our rev iew, any stay of removal 10 that the Court previously granted in this petition is VACATED, 11 and any pending motion for a stay of removal in this petition 12 is DISMISSED as moot. Any pending request for oral argument 13 in this petition is DENIED in accordance with Federal Rule of 14 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 15 34.1(b). 16
FOR THE COURT: 17 Catherine O’Hagan Wolfe 18 Clerk of Court 19