14-1111 

Chen v. Lynch

BIA 

Segal, IJ 

A201 139 864

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 TO 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 for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

4th day of December, two thousand fifteen. 

PRESENT: 

ROBERT A. KATZMANN, 

Chief Judge,

JON O. NEWMAN, 

PETER W. HALL,

Circuit Judges. 

_____________________________________ 

RU CHEN, 

 Petitioner, 

v. 14-1111 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Dehai Zhang, New York, NY. 
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FOR RESPONDENT: Joyce R. Branda, Acting Assistant 

Attorney General; Cindy S. Ferrier, 

Assistant Director; Kimberly A. 

Burdge, Trial Attorney, Office of 

Immigration Litigation, Civil 

Division, United States Department 

of Justice, Washington, D.C. 

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 Ru Chen, a native and citizen of China, seeks 

review of a March 27, 2014, decision of the BIA affirming an 

August 28, 2012, decision of an Immigration Judge (“IJ”) denying 

Chen’s application for asylum, withholding of removal, and 

relief under the Convention Against Torture (“CAT”). In re Ru 

Chen, No. A201 139 864 (B.I.A. Mar. 27, 2014), aff’g No. A201 

139 864 (Immig. Ct. N.Y.C. Aug. 28, 2012). We assume the 

parties’ familiarity with the underlying facts and procedural 

history in this case. 

Under the circumstances of this case, we have reviewed “the 

decision of the IJ as supplemented by the BIA.” Yan Chen v. 

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

standards of review are well established. See 8 U.S.C. 

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 

(2d Cir. 2008)(per curiam). 

 For asylum applications, like Chen’s, governed by the REAL 

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

circumstances,” base a credibility finding on an asylum 

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

plausibility of her account, and inconsistencies in her 

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

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

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

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

reasonable fact-finder could make such an adverse credibility 

ruling.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence 

supports the IJ’s finding that Chen was not credible. 

 The IJ’s credibility determination was properly based on 

the inconsistencies in Chen’s written application and testimony 

regarding when she wrote and published articles for the 

Democracy Party of China (”CDP”). Chen testified that she 

wrote five articles for the CDP: four of them were written 
4

between May 4, 2011 and April 1, 2012, and no date was given 

for the fifth. But her application, which listed her articles 

as a reason for her fear of persecution in China, was filed in 

April 2011, before any of the articles were published. The IJ 

gave Chen two opportunities to explain this discrepancy. Chen 

gave varied responses, including that: she was nervous; a May 

2011 date was a mistake by the people who posted the article 

online; she wrote her first article in April 2011 and did not 

know when it was published; the website on which some of the 

articles were published had been hacked and thus the articles’ 

publication dates were not verifiable; and the articles were 

posted by volunteers, so the time it took for articles to be 

published varied. The agency was not required to credit these 

explanations because the record makes it plausible that Chen 

was simply suggesting various possible explanations, as opposed 

to stating the actual reason for the discrepancy. See Majidi 

v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Moreover, 

Chen’s application stated that her articles were “published,” 

not that publication was pending or forthcoming. As such, even 
5

if an article had been written but not published in April 2011, 

it would do little, if anything, to resolve the discrepancy. 

 Nor did Chen establish that the IJ should have done more 

to develop the record. The two cases on which she relies are 

not relevant here. First, Jin Shui Qiu v. Ashcroft, 329 F.3d 

140, 156 (2d Cir. 2003), overruled on other grounds by Shi Liang 

Lin v. U.S. Dep’t. of Justice, 494 F.3d 296 (2d Cir. 2007), 

merely questions whether an IJ has a duty to assist counseled 

applicants (like Chen) to develop their cases. The second, Zhi 

Wei Pang v. Bureau of Citizenship and Immigration Services, 448 

F.3d 102, 111 (2d Cir. 2006), held that an IJ had not fulfilled 

this duty where the adverse credibility finding was based on 

speculative discrepancies that the IJ could have resolved by 

requesting explanation. Here, the discrepancies are not 

speculative. Even if the CDP had trouble publishing Chen’s 

first article, her application alleged publication of multiple 

articles, and yet the dates she gave at her hearing post-dated 

her application, thereby undermining the basis of her fear of 

persecution. 
6

Chen also appears to argue that the IJ violated her duty 

to develop the record in rejecting Chen’s claim that a 

photograph in one of the articles was sufficiently clear for 

a viewer to identify Chen. Chen alleged that the Government 

had a clearer copy, but did not present it to the IJ. Chen, 

however, does not identify evidence of a clearer copy or 

evidence that the IJ knew of such a copy. And in any event, 

the IJ’s credibility determination was not based on the clarity 

of the photograph. 

The “totality of the circumstances” supports the IJ’s 

decision because it cannot be said that “no reasonable fact 

finder could make such an adverse credibility ruling.” Xiu Xia 

Lin, 534 F.3d at 167. The discrepancies relate to the sole 

basis for Chen’s fear of future persecution, her contention that 

she has engaged in pro-democracy activities in the United States 

that will put her at risk of persecution for her political 

opinion. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 

289, 295 (2d Cir. 2006) (holding that an “inconsistency afforded 

substantial evidence to support the adverse credibility 

finding” where it was “‘a material inconsistency in an aspect 
7

of [petitioner’s] story that served as an example of the very 

persecution from which he sought asylum’” (quoting Majidi, 430 

F.3d at 80)). Because all of Chen’s claims share the same 

factual predicate, the adverse credibility determination is 

dispositive of Chen’s claims for asylum, withholding of 

removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148, 156-57 

(2d Cir. 2006). 

 For the foregoing reasons, the petition for review is 

DENIED. 

 FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk