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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 2 nd** **day of August, two thousand eleven.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **JOSÉ A. CABRANES,** 8 **GERARD E. LYNCH,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **YAN ZHU CHEN,** 13 Petitioner**,** 14 15 **v. 10-2484-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: Adedayo O. Idowu, New York, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; John S. Hogan, Senior** 27 **Litigation Counsel; Todd J. Cochran,** 28 **Trial Attorney, Office of** 29 **Immigration Litigation, Washington** 30 **D.C.** 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 Petitioner Yan Zhu Chen, a native and citizen of China, 5 seeks review of the May 25, 2010, decision of the BIA 6 affirming the June 4, 2008, decision of Immigration Judge 7 (“IJ”) Sandy Hom denying her application for asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Yan Zhu Chen, No. A088 020 10 981 (B.I.A. May 25, 2010), aff’gNo. A088 020 981 (Immig. 11 Ct. N.Y. City June 4, 2008). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as modified by the BIA decision, i.e., 16 minus the argument for denying relief that was not 17 considered by the BIA. See Xue Hong Yang v. U.S. Dep’t of 18 Justice , 426 F.3d 520, 522 (2d Cir. 2005); see also Yan Chen 19 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 20 applicable standards of review are well-established. See 21 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 223 534 F.3d 162, 165-66 (2d Cir. 2008); Salimatou Bah v. 1 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 2 We “defer to an IJ’s credibility determination unless, 3 from the totality of the circumstances, it is plain that no 4 reasonable fact-finder could make such an adverse 5 credibility ruling.” Xiu Xia Lin, 534 F.3d at 165-66. For 6 asylum applications governed by the REAL ID Act, the agency 7 may, “[c]onsidering the totality of the circumstances, . . . 8 base a credibility determination on the demeanor, candor, or 9 responsiveness of the applicant . . ., the consistency 10 between the applicant’s or witness’s written and oral 11 statements . . ., [and] the consistency of such statements 12 with other evidence of record . . . without regard to 13 whether an inconsistency goes to the heart of the 14 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 15 Lin, 534 F.3d at 163-64. 16 Substantial evidence supports the IJ’s adverse 17 credibility determination. In finding Chen not credible, 18 the IJ reasonably relied in part on Chen’s unresponsive 19 demeanor while testifying about her claims for relief based 20 on her involvement in Falun Gong and her Christian faith. 21
See8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. 224 Gonzales , 430 F.3d 77, 81 n.1 (2d Cir. 2005). The IJ also 1 reasonably relied on both Chen’s omission from her 2 application and supporting statement of her claim that she 3 feared persecution on account of her Christian faith, and 4 inconsistencies in the record evidence regarding whether 5 Chen promoted Falun Gong in the United States. See 8 U.S.C. 6 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163- 7 64, 166-67 & n.3 (recognizing that an inconsistency and an 8 omission are functionally equivalent in evaluating an 9 applicant’s credibility). Moreover, a reasonable fact 10 finder would not be compelled to credit Chen’s explanations 11 for these inconsistencies. See Majidi , 430 F.3d at 80-81. 12 Thus, we find no error in the agency’s denial of Chen’s 13 application for asylum, withholding of removal, and CAT 14 relief on credibility grounds insofar as her application was 15 based on her claimed involvement in Falun Gong and her 16 Christian faith. See Paul v. Gonzales , 444 F.3d 148, 156 17 (2d Cir. 2006). 18 To the extent Chen applied for CAT relief based on her 19 purported illegal departure from China, the IJ reasonably 20 found that she failed to satisfy her burden of proof. We 21 have held that an applicant, such as Chen, cannot 225 demonstrate that she will more likely than not be tortured 1 “based solely on the fact that she is part of the large 2 class of persons who have left China illegally” and on 3 generalized evidence indicating that torture occurs in 4 Chinese prisons. See Mu Xiang Lin v. U.S. Dep’t of Justice , 5 432 F.3d 156, 159-60 (2d Cir. 2005). Accordingly, because 6 Chen failed to submit any particularized evidence regarding 7 the likelihood that she would face torture upon repatriation 8 to China, we find no error in the IJ’s denial of Chen’s 9 application for CAT relief insofar as it was based on her 10 purportedly illegal departure from China. See id. 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19
FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22