10-2484-ag

Chen v. Holder

BIA

Hom, IJ

A088 020 981

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 2nd 4 day of August, two thousand eleven.

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOSÉ A. CABRANES,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _______________________________________

12

13 YAN ZHU CHEN,

14 Petitioner, 

15

16 v. 10-2484-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________ 22

23 FOR PETITIONER: Adedayo O. Idowu, New York, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; John S. Hogan, Senior

28 Litigation Counsel; Todd J. Cochran,

29 Trial Attorney, Office of

30 Immigration Litigation, Washington

31 D.C.
2

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 Petitioner Yan Zhu Chen, a native and citizen of China,

6 seeks review of the May 25, 2010, decision of the BIA

7 affirming the June 4, 2008, decision of Immigration Judge

8 (“IJ”) Sandy Hom denying her application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Yan Zhu Chen, No. A088 020

11 981 (B.I.A. May 25, 2010), aff’g No. A088 020 981 (Immig.

12 Ct. N.Y. City June 4, 2008). 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 the IJ’s decision as modified by the BIA decision, i.e.,

17 minus the argument for denying relief that was not

18 considered by the BIA. See Xue Hong Yang v. U.S. Dep’t of

19 Justice, 426 F.3d 520, 522 (2d Cir. 2005); see also Yan Chen

20 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

21 applicable standards of review are well-established. See 

22 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
3

1 534 F.3d 162, 165-66 (2d Cir. 2008); Salimatou Bah v.

2 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 

3 We “defer to an IJ’s credibility determination unless,

4 from the totality of the circumstances, it is plain that no

5 reasonable fact-finder could make such an adverse

6 credibility ruling.” Xiu Xia Lin, 534 F.3d at 165-66. For

7 asylum applications governed by the REAL ID Act, the agency

8 may, “[c]onsidering the totality of the circumstances, . . .

9 base a credibility determination on the demeanor, candor, or

10 responsiveness of the applicant . . ., the consistency

11 between the applicant’s or witness’s written and oral

12 statements . . ., [and] the consistency of such statements

13 with other evidence of record . . . without regard to

14 whether an inconsistency goes to the heart of the

15 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

16 Lin, 534 F.3d at 163-64. 

17 Substantial evidence supports the IJ’s adverse

18 credibility determination. In finding Chen not credible,

19 the IJ reasonably relied in part on Chen’s unresponsive

20 demeanor while testifying about her claims for relief based

21 on her involvement in Falun Gong and her Christian faith. 

22 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v.
4

1 Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). The IJ also

2 reasonably relied on both Chen’s omission from her

3 application and supporting statement of her claim that she

4 feared persecution on account of her Christian faith, and

5 inconsistencies in the record evidence regarding whether

6 Chen promoted Falun Gong in the United States. See 8 U.S.C.

7 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-

8 64, 166-67 & n.3 (recognizing that an inconsistency and an

9 omission are functionally equivalent in evaluating an

10 applicant’s credibility). Moreover, a reasonable fact

11 finder would not be compelled to credit Chen’s explanations

12 for these inconsistencies. See Majidi, 430 F.3d at 80-81. 

13 Thus, we find no error in the agency’s denial of Chen’s

14 application for asylum, withholding of removal, and CAT

15 relief on credibility grounds insofar as her application was

16 based on her claimed involvement in Falun Gong and her

17 Christian faith. See Paul v. Gonzales, 444 F.3d 148, 156

18 (2d Cir. 2006). 

19 To the extent Chen applied for CAT relief based on her

20 purported illegal departure from China, the IJ reasonably

21 found that she failed to satisfy her burden of proof. We

22 have held that an applicant, such as Chen, cannot
5

1 demonstrate that she will more likely than not be tortured

2 “based solely on the fact that she is part of the large

3 class of persons who have left China illegally” and on

4 generalized evidence indicating that torture occurs in

5 Chinese prisons. See Mu Xiang Lin v. U.S. Dep’t of Justice,

6 432 F.3d 156, 159-60 (2d Cir. 2005). Accordingly, because

7 Chen failed to submit any particularized evidence regarding

8 the likelihood that she would face torture upon repatriation

9 to China, we find no error in the IJ’s denial of Chen’s

10 application for CAT relief insofar as it was based on her

11 purportedly illegal departure from China. See id.

12 For the foregoing reasons, the petition for review is

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

14 removal that the Court previously granted in this petition

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

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

17 oral argument in this petition is DENIED in accordance with

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

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22