11-834-ag

Chen v. Holder

BIA

Rohan, IJ

A089 200 684

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 10th day of April, two thousand twelve.

PRESENT:

ROBERT A. KATZMANN,

BARRINGTON D. PARKER,

REENA RAGGI,

 Circuit Judges. 

_______________________________________

CAI CHEN,

Petitioner, 

 v. 11-834-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Eric Y. Zheng, Esq., New York, New

York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Francis Fraser, Senior

Litigation Counsel; Kate D. Balaban,

Trial Attorney, Office of

Immigration Litigation, U.S.

Department of Justice, Washington

D.C.
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UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Cai Chen, a native and citizen of China,

seeks review of the February 16, 2011 decision of the BIA

affirming the April 14, 2009 decision of Immigration Judge

(“IJ”) Patricia A. Rohan denying his application for asylum,

withholding of removal, and CAT relief. In re Cai Chen, No.

A089 200 684 (B.I.A. Feb. 16, 2011), aff’g No. A089 200 684

(Immig. Ct. N.Y.C. Apr. 14, 2009). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Under the circumstances of this case, we review both

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

432 F.3d 391, 394 (2d Cir. 2005). We “defer . . . to an

IJ’s credibility determination unless, from the totality of

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

Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see 8

U.S.C. § 1252(b)(4)(B). For asylum applications, like

Chen’s, governed by the REAL ID Act, the agency may base a
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credibility finding on an asylum applicant’s demeanor, the

plausibility of his account, and inconsistencies in his

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

of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);

accord Xiu Xia Lin, 534 F.3d at 163. 

Substantial evidence supports the agency’s

determination that Chen did not testify credibly regarding

his claim that he faced persecution on account of his

membership in an underground church. In finding Chen not

credible, the agency reasonably relied on inconsistencies in

the record. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

534 F.3d at 166-67. As the agency noted, Chen omitted from

his initial asylum application, and did not disclose to the

to the IJ until several weeks before his merits hearing,

that (1) two members of his underground church had been

arrested by Chinese authorities because of their religious

activities, and (2) Chen had previously entered the United

States in 2000 and had remained for approximately five

years. See Xiu Xia Lin, 534 F.3d at 166 n.3 (recognizing

that inconsistencies and omissions are functionally

equivalent in evaluating applicant’s credibility). Although

applicants are not required to include a “comprehensive

recitation” of their claims on an asylum application, Zhi
4

Wei Pang v. Bureau of Citizenship & Immigration Servs., 448

F.3d 102, 112 (2d Cir. 2006) (internal quotation marks

omitted), and Chen asserted in his initial asylum

application that he knew “others attending house churches in

[his] area were arrested,” Administrative Record (“A.R.”)

339, the arrests of the two church members took place prior

to the filing of Chen’s application but were not brought to

the attention of the IJ until a few weeks before the merits

hearing. Additionally, while Chen argues in his brief that

the information regarding the arrests was submitted late

because a “letter confirming the details” was not received

“until less than three weeks before the hearing,” Pet’r’s

Br. 24, he testified at the April 2009 merits hearing that

he first learned of these arrests, which occurred in

February and April 2008, during an earlier “telephone

communication,” A.R. 100. 

With respect to Chen’s proffered explanation for the

omission of his prior five-year stay in the United States,

his assertion that he was not a Christian during that period

may explain why he did not apply for asylum then, but it

does not explain why he failed to include that information

in his counseled 2008 asylum application, despite the

application’s explicit requirement that Chen list his prior
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entries into the United States. Given the above, a

reasonable fact finder would not have been compelled to

credit Chen's explanations for his omissions and

inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81

(2d Cir. 2005) (finding that agency need not credit

applicant's explanations unless those explanations would

compel reasonable fact-finder to do so).

In light of Chen’s lack of credibility, it was not

error for the agency to require him to submit evidence

corroborating his assertions. See Biao Yang v. Gonzales,

496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to

corroborate his or her testimony may bear on credibility,

because the absence of corroboration in general makes an

applicant unable to rehabilitate testimony that has already

been called into question.”). At the merits hearing, Chen

testified that he was diagnosed with cancer in 2005 at a New

York clinic and then returned to China where he underwent

surgery to remove a tumor. When asked by the IJ whether he

had any medical records confirming his diagnosis, Chen

replied that he did not have the records anymore and did not

remember the name of the New York clinic. Further, Chen’s

attorney stated that he did not “have a good explanation” as

to why Chen had not visited a free clinic in order to obtain
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“some sort of a record” confirming that Chen had surgery to

remove a tumor. A.R. 97. Where an applicant is not

otherwise credible, the agency need not find that missing

relevant evidence was reasonably available to the applicant

before relying on a lack of corroboration to support an

adverse credibility finding. See Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 341 (2d Cir. 2006). Accordingly,

the agency reasonably relied on Chen’s failure to present

corroborating evidence of his medical condition to support

its adverse credibility finding. See Biao Yang, 496 F.3d at

273.

Because the adverse credibility determination is

supported by substantial evidence, we find no error in the

agency’s denial of Chen’s application for asylum,

withholding of removal, and CAT relief, which were all based

on his purported membership in an underground church. See

Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with
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Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk