19-1063

Chen v. Garland

BIA

Wilson, IJ

A089 479 986

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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 8th 4 day of March, two thousand twenty-two.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 RAYMOND J. LOHIER, JR.,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 GI ZHONG CHEN,

14 Petitioner,

15

16 v. 19-1063

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: John Son Yong, Law Office of John 

24 Yong, New York, NY.

25

26 FOR RESPONDENT: Brian M. Boynton, Assistant

27 Attorney General; Matthew B. 

28 George, Senior Litigation Counsel; 

29 Craig W. Kuhn, Trial Attorney, 

30 Office of Immigration Litigation, 

31 United States Department of 
2

1 Justice, Washington, DC.

2 UPON DUE CONSIDERATION of this petition for review of a 

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

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

5 is DENIED.

6 Petitioner Gi Zhong Chen, a native and citizen of the 

7 People’s Republic of China, seeks review of a March 27, 2019

8 decision of the BIA affirming a January 3, 2018 decision of 

9 an Immigration Judge (“IJ”) denying Chen’s application for 

10 asylum, withholding of removal, and relief under the 

11 Convention Against Torture (“CAT”). In re Gi Zhong Chen, No. 

12 A089 479 986 (B.I.A. Mar. 27, 2019), aff’g No. A089 479 986

13 (Immig. Ct. N.Y. City Jan. 3, 2018). We assume the parties’ 

14 familiarity with the underlying facts and procedural history.

15 Under the circumstances, we have reviewed both the IJ’s 

16 and the BIA’s opinions “for the sake of completeness.” 

17 Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528 

18 (2d Cir. 2006). We review competency and adverse credibility 

19 findings for substantial evidence. See 8 U.S.C. 

20 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 

21 (2d Cir. 2018); see also Diop v. Lynch, 807 F.3d 70, 75 (4th 

22 Cir. 2015). We find no error in the agency’s findings that 
3

1 Chen was competent to testify and not credible as to his claim 

2 that family planning officials in China forced his wife to 

3 terminate a pregnancy, caused her to suffer a miscarriage, 

4 and beat him.

5 We start with our conclusion that the agency did not err 

6 in finding Chen competent to proceed with his removal 

7 proceedings. “[A]n alien is presumed to be competent to 

8 participate in removal proceedings.” Matter of M-A-M-, 25 

9 I. & N. Dec. 474, 477 (B.I.A. 2011). “[A] lack of competency 

10 in civil immigration proceedings does not mean that the 

11 hearing cannot go forward; rather, procedural fairness is 

12 required.” Id. at 479. “[T]he test for determining whether 

13 an alien is competent to participate in immigration 

14 proceedings is whether he or she has a rational and factual 

15 understanding of the nature and object of the proceedings, 

16 can consult with the attorney or representative if there is 

17 one, and has a reasonable opportunity to examine and present 

18 evidence and cross-examine witnesses.” Id. Here, Chen 

19 submitted a psychiatric evaluation stating that he was able 

20 to testify despite his cognitive impairment; he testified in 

21 a way that was responsive to the questions posed to him; and 
4

1 the IJ accommodated him by posing simpler questions when 

2 necessary. See id. at 477, 479.

3 Second, Chen waived any challenge to the IJ’s specific 

4 inconsistency and lack of corroboration findings that formed 

5 the bases for the agency’s adverse credibility determination. 

6 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 

7 (2d Cir. 2005) (finding that petitioner abandons issues and 

8 claims not raised in his brief). Those findings are 

9 supported by the record, which shows that Chen presented 

10 inconsistent evidence regarding whether his mother or wife 

11 told him of his wife’s 2002 abortion, whether his wife lived 

12 in hiding for two weeks or four months, and whether he was 

13 beaten during his second encounter with family planning 

14 officials. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Likai 

15 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a 

16 single inconsistency might preclude an alien from showing 

17 that an IJ was compelled to find him credible. Multiple 

18 inconsistencies would so preclude even more forcefully.”); 

19 Hong Fei Gao, 891 F.3d at 78–79 (providing that an omission 

20 may be significant if the “facts are ones that a credible 

21 petitioner would reasonably have been expected to disclose 
5

1 under the relevant circumstances”). Chen also did not submit 

2 corroborating evidence that might have rehabilitated his 

3 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 

4 (2d Cir. 2007) (“An applicant’s failure to corroborate his or 

5 her testimony may bear on credibility, because the absence of 

6 corroboration in general makes an applicant unable to 

7 rehabilitate testimony that has already been called into 

8 question.”). 

9 Given the inconsistency and corroboration findings, the 

10 agency’s adverse credibility determination is supported by 

11 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). 

12 That determination is dispositive of asylum, withholding of 

13 removal, and CAT relief because the claims were based on the 

14 same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 

15 156–57 (2d Cir. 2006). 

16 For the foregoing reasons, the petition for review is 

17 DENIED. All pending motions and applications are DENIED and 

18 stays VACATED.

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe,

21 Clerk of Court