19

- 1063 Chen v. Garland BIA Wilson , IJ A 089 479 986 

### 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 8**  **t h**  **d a**  **y of M**  **a r**  **c h**  **, two thousand**  **twenty**

**- two** 

**.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER ,**  7 **RAYMOND J. LOHIER, JR. ,**  8 **SUSAN L. CARNEY ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **GI ZHONG CHEN ,**  13 **Petitioner ,**  14 15
**v. 19** 

**- 1063**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL**  **,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  John Son Yong , Law Office of John 23 Yong, New York , NY

. 24 25 **FOR RESPONDENT:** Brian M. Boynton , Assistant 26 Attorney General ; Matthew B. 27 George , Senior Litigation Counsel ; 28 Craig W. Kuhn , Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 312 Justice, Washington, D C. 1
UPON DUE CONSIDERATION of this petition for review of a 2
Board of Immigration Appeals (“BIA”) decision, it is hereby 3
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 4

is DENIED

. 5

Petitioner Gi Zhong Chen , a native and citizen of the 6
People’s Republic of China , seeks review of a March 27 , 201 9 7

decision of the BIA affirming a January 3 , 201 8 decision of 8
an Immigration Judge (“IJ”) denying Chen ’s application f or 9
asylum, withholding of removal, and relief under the 10
Convention Against Torture (“CAT”). In re Gi Zhong Chen , No. 11

A 089 479 986 (B.I.A. Mar. 27 , 201 9 ), aff’g No. A 089 479 986 12
(Immig. Ct. N.Y. City Jan. 3, 2018 ). We assume the parties’ 13
familiarity with the underlying facts and procedural history. 14
Under the circumstances, we have reviewed both the IJ’s 15
and the BIA’s opinions “for the sake of completeness.” 16
Wangchuck v. Dep’t of Homeland Security , 448 F.3d 524, 528 17

(2d Cir. 2006). We review competency and adverse credibility 18
findings for substantial evidence. See 8 U.S.C. 19

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

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

Cir. 2015). We find no error in the agency’s findings that 223 Chen was competent to testify and not credible as to his claim 1
that family planning officials in China forced his wife to 2
terminate a pregnancy, caused her to suffer a miscarriage, 3

and beat him. 4

We st art with our conclusion that t he agency did not err 5

in finding Chen competent to proceed with his removal 6
proceedings. “[A]n alien is presumed to be competent to 7
participate in removal proceedings

. ” Matter of M

- A

- M

- , 25 8

I. & N. Dec. 474, 477 (B

. I

. A

. 2011 ). “[A] lack of competency 9
in civil immigration proceedings does not mean that the 10
hearing cannot go forward; rather, procedural fairness is 11
required.” Id. at 479. “[T]he test for determining whether 12
an alien is competent to participate in immigration 13
proceedings is whether he or she has a rational and factual 14
understanding of the nature and object of the proceedings, 15
can consult with the attorney or representative if there is 16
one, and has a reasonable opportunity to examine and present 17

evidence and cross

- examine witnesses.” Id. Here, Chen 18
submitted a psychiatric evaluation stating that he was able 19
to testify despite his cognitive impairment ; he testified in 20
a way that was res ponsive to the questions posed to him ; and 214 the IJ accommodate d him by posing simpler questions when 1

necessary. See id. at 477, 479. 2

Second, Chen waive d any challenge to the IJ’s specific 3
inconsistency and lack of corroboration findings that formed 4
the bases for the agency’s adverse credibility determination. 5
See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1, 545 n.7 6
(2d Cir. 2005) (finding that petit ioner abandons issues and 7

claims not raised in his brief). Those findings are 8
supported by the record, which shows that Chen presented 9

inconsistent evidence regarding whether his mother or wife 10

told him of his wife’s 2002 abortion, whether his wife lived 11
in hiding for two weeks or four months, and whether he was 12
beaten during his second encounter with family planning 13

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

Gao v. Barr , 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a 15
single inconsisten cy might preclude an alien from showing 16
that an IJ was compelled to find him credible. Multiple 17
inconsistencies would so preclude even more forcefully.”); 18
Hong Fei Gao , 891 F.3d at 78

– 79 ( providing that an omission 19
may be significant if the “facts are ones that a credible 20
petitioner would reasonably have been expected to disclose 215 under the relevant circumstances”). Chen also did not submit 1
corroborating evidence that might have rehabilitated his 2
credibility

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

(2d Cir. 2007) ( “An applicant’s failure to corroborate his or 4
her testimony may bear on credibility, because the absence of 5
corroboration in general makes an applicant unable to 6
rehabilitate testimony that has already been called into 7
question.” ). 8

Given the inconsistency and corroboration findings, the 9
agency’s adverse credibility determination is supported by 10

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

That determination is dispositive of asylum, withholding of 12

removal, and CAT relief because the claims were based on the 13
same factual predicate. See Paul v. Gonzales , 444 F.3d 148, 14

156

– 57 (2d Cir. 2006). 15
For the foregoing reasons, the petition for review is 16

DENIED

. All pending motions and applications are DENIED and 17

stays VACATED. 18

FO R THE COURT: 19 Catherine O ’ Hagan Wolfe , 20 Clerk of Court 21