12-3761 Song v. HolderBIA 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.**  **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 5 th** **day of November, two thousand thirteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **JOSÉ A. CABRANES,** 8 **PETER W. HALL,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **CHEN SONG,** 13 Petitioner**,** 14 15 **v. 12-3761** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Lewis G. Hu, New York, New York.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Anthony W.** 26 **Norwood, Senior Litigation Counsel;** 27 **Lisa M. Damiano, Trial Attorney,** 28 **Office of Immigration Litigation,** 29 **United States Department of Justice,** 30 **Washington, D.C** 31UPON 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 Chen Song, a native and citizen of China, seeks review 5 of a August 27, 2012, decision of the BIA affirming the 6 February 7, 2011, decision of an Immigration Judge (“IJ”), 7 which denied his application for asylum, withholding of 8 removal, and relief under the Convention Against Torture 9 (“CAT”). In re Chen Song, No. A094 793 330 (B.I.A. Aug. 27, 10 2012), aff’gNo. A094 793 330 (Immig. Ct. N.Y. City Feb. 7, 11 2011). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 Under the circumstances of this case, we have reviewed 14 both the BIA’s and IJ’s opinions.Yun-Zui Guan v. Gonzales , 15 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards 16 of review are well-established. See 8 U.S.C. 17 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 18 (2d Cir. 2009). 19 For applications, like Song’s, governed by the REAL ID 20 Act, the agency may, “[c]onsidering the totality of the 21 circumstances,” base a credibility finding on an asylum 22 applicant’s “demeanor, candor, or responsiveness,” the 23
2plausibility of his account, and inconsistencies in his 1 statements, without regard to whether they go “to the heart 2 of the applicant’s claim.” See8 U.S.C. 3 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v. 4 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer to an 5 IJ’s credibility determination unless, from the totality of 6 the circumstances, it is plain that no reasonable fact7 finder could make such an adverse credibility ruling.” Xiu 8 Xia Lin , 534 F.3d at 167. 9 Here, the totality of the circumstances supports the 10 agency’s adverse credibility determination. The agency 11 reasonably found that Song’s testimony lacked detail about 12 the content of his Christianity classes, given he had 13 attended for eight weeks but was only able to cite one 14 lesson. Similarly, although he testified he had attended 15 church since 2007, his explanation of his faith and how it 16 affected his life was ambiguous and generalized. While this 17 alone would likely not be sufficient to support an adverse 18 credibility finding,see Rizal v. Gonzales , 442 F.3d 84, 86 19 (2d Cir. 2006) (finding a lack of doctrinal knowledge 20 insufficient to support an adverse credibility finding), 21 together with Song’s lack of corroborating evidence and his 22

3incredible witness, the agency’s determination was 1 reasonable. See Tu Lin v. Gonzales , 446 F.3d 395, 402 (2d 2 Cir. 2006) (emphasizing that “even where an IJ relies on 3 discrepancies or lacunae that, if taken separately, concern 4 matters collateral or ancillary to the claim, ... the 5 cumulative effect may nevertheless be deemed consequential 6 by the fact-finder”). 7 To establish he had suffered past persecution, Song 8 offered his father’s friend as a witness. The witness had 9 allegedly seen Song two days after his severe beating by the 10 Chinese authorities. However , as the agency properly noted, 11 the witness’s testimony was inconsistent, as she stated that 12 she heard about the cause of Song’s problems from his 13 father, but later said Song had told her himself. 14 Similarly, her testimony was inconsistent regarding when 15 Song’s beating occurred, how long Song was detained, how he 16 was released from prison, and whether he had to pay bail. 17 The IJ determined that the witness’s testimony was not fluid 18 or responsive, but rather seemed to be memorized. These 19 specific examples of confused and inconsistent witness 20 testimony support the adverse credibility finding. See 21 8 U.S.C. §§ 1158(b)(1)(B)(iii). 22

4In addition, the agency correctly determined that Song 1 did not corroborate either his claim of past persecution or 2 of a well-founded fear of future persecution. See Biao Yang 3 v. Gonzales v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) 4 (“An applicant’s failure to corroborate his or her testimony 5 may bear on credibility, because the absence of 6 corroboration in general makes an applicant unable to 7 rehabilitate testimony that has already been called into 8 question.”). As evidence of his past persecution, Song 9 offered letters from family and friends who were interested 10 parties not subject to cross-examination. See Matter of H11

L-H & Z-Y-Z , 25 I&N Dec. 209, 214-15 (BIA 2010), overruled 12 in part on other grounds by Hui Lin Huang v. Holder, 677 13 F.3d 130 (2d Cir. 2012). He also offered two medical 14 prescriptions in place of medical records. When questioned 15 about the records, Song stated that perhaps his medical 16 treatment occurred too long ago, and this was all he was 17 able to obtain. Theagency was not reasonably compelled to 18 accept this explanation. See Majidi v. Gonzales , 430 F.3d 19 77, 80 (2d Cir. 2005). 20 Song also offered a brief letter from his pastor which 21 did not give any information about his church attendance, 22 and the pastor was unavailable to testify telephonically. 23 5Even though Song had asked other church members to testify 1 on his behalf, no one did so. See Xiao Ji Chen v. U.S. 2 Dep’t of Justice , 471 F.3d 315, 341 (2d Cir. 2006). 3 Because the only evidence of a threat to Song’s life or 4 freedom depended upon his credibility, the adverse 5 credibility determination in this case also precludes 6 success on his claim for withholding of removal and CAT 7 relief. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 8 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 19 20

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