08-4278-ag

Chen v. Holder

BIA

Bukszpan, IJ

A200-024-889

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

4 New York, on the 8 day of January, two thousand ten. th

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 GUIDO CALABRESI,

10 DEBRA ANN LIVINGSTON,

11 Circuit Judges.

12 _______________________________________

13

14 CHUN CHEN,

15 Petitioner, 

16

17 v. 08-4278-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Nathaniel K. Hsieh, Hsieh &

25 Associates, PC, Chicago, Illinois.
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General; M. Jocelyn Lopez-Wright,

3 Senior Litigation Counsel; Judith R.

4 O’Sullivan, Trial Attorney, Office

5 of Immigration Litigation, United

6 States Department of Justice, Civil

7 Division, Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

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

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is DENIED.

13 Petitioner Chun Chen, a native and citizen of the

14 People’s Republic of China, seeks review of a July 30, 2008

15 order of the BIA affirming the July 30, 2007 decision of

16 Immigration Judge (“IJ”) Joanna Miller Bukszpan denying his

17 application for asylum, withholding of removal, and relief

18 under the Convention Against Torture (“CAT”). In re Chun

19 Chen, No. A200-024-889 (B.I.A. July 30, 2008), aff’g No.

20 A200-024-889 (Immig. Ct. N.Y. City July 30, 2007). We

21 assume the parties’ familiarity with the underlying facts

22 and procedural history in this case.

23 When the BIA agrees with the IJ’s conclusion that a

24 petitioner is not credible and, without rejecting any of the

25 IJ’s grounds for decision, emphasizes particular aspects of

26 that decision, this Court reviews both the BIA’s and IJ’s
3

1 opinions -- or more precisely, the Court reviews the IJ’s

2 decision including the portions not explicitly discussed by

3 the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

4 Cir. 2005). We review the agency’s factual findings,

5 including adverse credibility findings, under the

6 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);

7 see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). 

8 We review de novo questions of law and the application of

9 law to undisputed fact. See, e.g., Salimatou Bah v.

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

11 Substantial evidence supports the IJ’s adverse

12 credibility determination. See Corovic, 519 F.3d at 95. 

13 The IJ cited: (1) inconsistencies between Chen’s testimony

14 and his cousin’s testimony regarding the date Chen last

15 practiced Falun Gong; (2) inconsistencies between his

16 testimony and his cousin’s testimony regarding where he

17 practiced Falun Gong; (3) inconsistencies between his

18 testimony and his cousin’s testimony regarding the apartment

19 they allegedly shared and the family members they lived

20 with; (4) inconsistencies between his testimony and his

21 written statement regarding the year in which he was

22 arrested; and (5) Chen’s lack of knowledge about the Falun
4

1 Gong flyers he allegedly posted. Chen’s brief argues that

2 several of these inconsistencies were too minor to support

3 an adverse credibility determination. However, under the

4 REAL ID Act, which applied to Chen’s application for relief,

5 “an IJ may rely on any inconsistency or omission in making

6 an adverse credibility determination as long as the

7 ‘totality of the circumstances’ establishes that an asylum

8 applicant is not credible.” Xiu Xia Lin v. Mukasey, 534

9 F.3d 162, 167 (2d Cir. 2008) (emphasis in original); see

10 Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007)

11 (finding that “the REAL ID Act no longer requires the trier

12 of fact to find a nexus between inconsistencies and the

13 ‘heart of the claim’”). Moreover, although Chen offered

14 explanations for these discrepancies before the agency, no

15 reasonable fact finder would have been compelled to credit

16 them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

17 2005). 

18 Given the discrepancies the IJ identified, substantial

19 evidence supports the agency’s adverse credibility

20 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

21 Lin, 534 F.3d at 167. Therefore, the IJ properly denied

22 Chen’s application for asylum. The applications for
5

1 withholding of removal and CAT relief were also properly

2 denied because the only evidence that Chen would be

3 persecuted or tortured depended on his credibility. See

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

5 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

6 2005).

7 For the foregoing reasons, the petition for review is

8 DENIED. As we have completed our review, any pending motion

9 for a stay of removal in this petition is DISMISSED as moot. 

10 Any pending request for oral argument in this petition is

11 DENIED in accordance with Federal Rule of Appellate

12 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

13

14

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17

18 By:___________________________