12-3761 

Song v. Holder 

 BIA

Zagzoug, IJ

A094 793 330

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 5th 4 day of November, two thousand thirteen.

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOSÉ A. CABRANES,

9 PETER W. HALL,

10 Circuit Judges. 

11 _____________________________________

12

13 CHEN SONG,

14 Petitioner, 

15

16 v. 12-3761

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Lewis G. Hu, New York, New York.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Anthony W.

27 Norwood, Senior Litigation Counsel;

28 Lisa M. Damiano, Trial Attorney,

29 Office of Immigration Litigation,

30 United States Department of Justice,

31 Washington, D.C
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 Chen Song, a native and citizen of China, seeks review

6 of a August 27, 2012, decision of the BIA affirming the

7 February 7, 2011, decision of an Immigration Judge (“IJ”),

8 which denied his application for asylum, withholding of

9 removal, and relief under the Convention Against Torture

10 (“CAT”). In re Chen Song, No. A094 793 330 (B.I.A. Aug. 27,

11 2012), aff’g No. A094 793 330 (Immig. Ct. N.Y. City Feb. 7,

12 2011). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 Under the circumstances of this case, we have reviewed

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

16 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards

17 of review are well-established. See 8 U.S.C. 

18 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

19 (2d Cir. 2009).

20 For applications, like Song’s, governed by the REAL ID

21 Act, the agency may, “[c]onsidering the totality of the

22 circumstances,” base a credibility finding on an asylum

23 applicant’s “demeanor, candor, or responsiveness,” the

2
1 plausibility of his account, and inconsistencies in his

2 statements, without regard to whether they go “to the heart

3 of the applicant’s claim.” See 8 U.S.C. 

4 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.

5 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer to an

6 IJ’s credibility determination unless, from the totality of

7 the circumstances, it is plain that no reasonable fact8 finder could make such an adverse credibility ruling.” Xiu

9 Xia Lin, 534 F.3d at 167. 

10 Here, the totality of the circumstances supports the

11 agency’s adverse credibility determination. The agency

12 reasonably found that Song’s testimony lacked detail about

13 the content of his Christianity classes, given he had

14 attended for eight weeks but was only able to cite one

15 lesson. Similarly, although he testified he had attended

16 church since 2007, his explanation of his faith and how it

17 affected his life was ambiguous and generalized. While this

18 alone would likely not be sufficient to support an adverse

19 credibility finding, see Rizal v. Gonzales, 442 F.3d 84, 86

20 (2d Cir. 2006) (finding a lack of doctrinal knowledge

21 insufficient to support an adverse credibility finding),

22 together with Song’s lack of corroborating evidence and his

3
1 incredible witness, the agency’s determination was

2 reasonable. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d

3 Cir. 2006) (emphasizing that “even where an IJ relies on

4 discrepancies or lacunae that, if taken separately, concern

5 matters collateral or ancillary to the claim, ... the

6 cumulative effect may nevertheless be deemed consequential

7 by the fact-finder”).

8 To establish he had suffered past persecution, Song

9 offered his father’s friend as a witness. The witness had

10 allegedly seen Song two days after his severe beating by the

11 Chinese authorities. However, as the agency properly noted,

12 the witness’s testimony was inconsistent, as she stated that

13 she heard about the cause of Song’s problems from his

14 father, but later said Song had told her himself. 

15 Similarly, her testimony was inconsistent regarding when

16 Song’s beating occurred, how long Song was detained, how he

17 was released from prison, and whether he had to pay bail. 

18 The IJ determined that the witness’s testimony was not fluid

19 or responsive, but rather seemed to be memorized. These

20 specific examples of confused and inconsistent witness 

21 testimony support the adverse credibility finding. See

22 8 U.S.C. §§ 1158(b)(1)(B)(iii).

4
1 In addition, the agency correctly determined that Song

2 did not corroborate either his claim of past persecution or

3 of a well-founded fear of future persecution. See Biao Yang

4 v. Gonzales v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

5 (“An applicant’s failure to corroborate his or her testimony

6 may bear on credibility, because the absence of

7 corroboration in general makes an applicant unable to

8 rehabilitate testimony that has already been called into

9 question.”). As evidence of his past persecution, Song

10 offered letters from family and friends who were interested

11 parties not subject to cross-examination. See Matter of H12 L-H & Z-Y-Z, 25 I&N Dec. 209, 214-15 (BIA 2010), overruled

13 in part on other grounds by Hui Lin Huang v. Holder, 677

14 F.3d 130 (2d Cir. 2012). He also offered two medical

15 prescriptions in place of medical records. When questioned

16 about the records, Song stated that perhaps his medical

17 treatment occurred too long ago, and this was all he was

18 able to obtain. The agency was not reasonably compelled to

19 accept this explanation. See Majidi v. Gonzales, 430 F.3d

20 77, 80 (2d Cir. 2005).

21 Song also offered a brief letter from his pastor which

22 did not give any information about his church attendance,

23 and the pastor was unavailable to testify telephonically. 

5
1 Even though Song had asked other church members to testify

2 on his behalf, no one did so. See Xiao Ji Chen v. U.S.

3 Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006).

4 Because the only evidence of a threat to Song’s life or

5 freedom depended upon his credibility, the adverse

6 credibility determination in this case also precludes

7 success on his claim for withholding of removal and CAT

8 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

9 2006).

10 For the foregoing reasons, the petition for review is

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

12 removal that the Court previously granted in this petition

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

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

15 oral argument in this petition is DENIED in accordance with

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

17 Circuit Local Rule 34.1(b).

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk

20

6