13-2608 Chen v. Lynch BIA Burr, IJ A205 047 821 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE P RECEDENTIAL**  **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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 14 th** **day of December, two thousand fifteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **SUSAN L. CARNEY,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges **.** 10

**_____________________________________** 11 12 **Jinsheng Chen,** 13 Petitioner**,** 14 15 **v. 13-2608** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Lewis G. Hu, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 25 **General; Terri J. Scadron, Assistant** 26 **Director; Kathryn L. Deangelis,** 27 **Trial Attorney, Office of** 28**Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Jinsheng Chen, a native and citizen of the People’s 9 Republic of China, seeks review of a June 17, 2013 decision 10 of the BIA affirming the October 1, 2012 decision of 11 Immigration Judge (“IJ”) Sarah M. Burr, which denied his 12 application for asylum, withholding of removal, and relief 13 under the Convention Against Torture (“CAT”). In re 14 Jinsheng Chen , No. A205 047 821 (B.I.A. June 17, 2013), 15 aff’gNo. A205 047 821 (Immig. Ct. N.Y. City Oct. 1, 2012). 16 We assume the parties’ familiarity with the underlying facts 17 and procedural history. 18 Under the circumstances of this case, we have reviewed 19 the IJ’s decision as modified by the BIA decision, i.e., 20 minus the arguments for denying relief (Chen’s lack of 21 doctrinal knowledge) that were rejected by the BIA. See Xue 22 Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d 23 Cir. 2005). The applicable standards of review are well 24

2established. See8 U.S.C. § 1252(b)(4)(B);Yanqin Weng v. 1 Holder , 562 F.3d 510, 513 (2d Cir. 2009). 2 For asylum applications that like Chen’s, are governed 3 by the REAL ID Act of 2005, the agency may, “[c]onsidering 4 the totality of the circumstances,” base a credibility 5 finding on an asylum applicant’s “demeanor, candor, or 6 responsiveness,” the plausibility of his account, and 7 inconsistencies in his statements, without regard to whether 8 they go “to the heart of the applicant’s claim,” so long as 9 they reasonably support an inference that the applicant is 10 not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia 11 Lin v. Mukasey,534 F.3d 162, 167 (2d Cir. 2008). We “defer 12 . . . to an IJ’s credibility determination unless, from the 13 totality of the circumstances, it is plain that no 14 reasonable fact-finder could make such an adverse 15 credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. In this 16 case, the agency reasonably based its adverse credibility 17 determination on inconsistencies between Chen’s testimony 18 and that of his witness, and the lack of a plausible 19 explanation for those inconsistencies. 20 The IJ found that Chen failed to meet his burden of 21 proof for asylum because his account of his Falun Gong 22

3activities was inconsistent with the testimony of his 1 friend, Chen Long Dong (“the witness”). Substantial 2 evidence supports the IJ’s findings that Chen testified 3 inconsistently with the witness with respect to where he and 4 the witness first met, whether they arranged in advance to 5 practice Falun Gong together, and how many Falun Gong 6 positions Chen practices. 7 While the inconsistency regarding where Chen and the 8 witness first met is relatively minor, the agency was 9 nonetheless entitled to rely on the “cumulative effect” of 10 the inconsistencies. See Tu Lin v. Gonzales , 446 F.3d 395, 11 402 (2d Cir. 2006) (emphasizing that “even where an IJ 12 relies on discrepancies or lacunae that, if taken 13 separately, concern matters collateral or ancillary to the 14 claim,. . . the cumulative effect may nevertheless be deemed 15 consequential by the fact-finder”(internal quotation marks 16 omitted)); see also Liang Chen v. U.S. Att'y Gen.,454 F.3d 17 103, 106-107 (2d Cir. 2006) (“[A]n IJ need not consider the 18 centrality vel non of each individual discrepancy or 19 omission” and can instead “rely upon the cumulative impact 20 of such inconsistencies,. . . and may conduct an overall 21 evaluation of testimony in light of its rationality or 22

4internal consistency and the manner in which it hangs 1 together with other evidence.”(internal quotation marks 2 omitted)). Furthermore, Chen had an opportunity to address 3 the inconsistencies, but Chen failed to address them. See 4 Ming Shi Xue v. BIA, 439 F.3d 111, 120-21 (2d Cir. 2006) (An 5 IJ need only give an applicant a chance to reconcile 6 inconsistences that are not self-evident; otherwise, it is 7 the applicant’s “responsibility to proffer, with or without 8 prompting, an explanation for what appears on its face to be 9 a clear contradiction.”). 10 The totality of the circumstances supports the agency’s 11 adverse credibility determination. See8 U.S.C. 12 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. Because 13 the only evidence of a threat to Chen’s life or freedom 14 depended upon his credibility, the adverse credibility 15 finding necessarily precludes success on his claims for 16 asylum, withholding of removal, and CAT relief. See Paul v. 17 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 18 For the foregoing reasons, the petition for review is 19 DENIED. As we have completed our review, any stay of 20 removal that the Court previously granted in this petition 21

5is VACATED, and any pending motion for a stay of removal in 1 this petition is DISMISSED as moot. 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 6

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