09-2589-ag

Chen v. Holder

BIA

Elstein, IJ

A096 241 859

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 25 day of February, two thousand ten. th

PRESENT:

ROBERT D. SACK,

RICHARD C. WESLEY,

PETER W. HALL,

Circuit Judges.

_______________________________________

FENG CHEN,

Petitioner, 

 v. 09-2589-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Farah Loftus, Century City,

California.
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FOR RESPONDENT: Tony West, Assistant Attorney

General, Civil Division; Richard M.

Evans, Assistant Director; Sada

Manickam, Trial Attorney, Office of

Immigration Litigation, 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.

Feng Chen, a native and citizen of the People’s

Republic of China, seeks review of a May 29, 2009 order of

the BIA, affirming the July 19, 2007 decision of Immigration

Judge (“IJ”) Annette S. Elstein, which denied her

application for asylum, withholding of removal, and relief

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

Chen, No. A096 241 859 (B.I.A. May 29, 2009), aff’g No. 

A096 241 859 (Immig. Ct. N.Y. City July 19, 2007). We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

Under the circumstances of this case, we review both

the BIA’s and the IJ’s decisions. See Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). 

The applicable standards of review are well-established. 

See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey,

519 F.3d 90, 95 (2d Cir. 2008). 

As a preliminary matter, Chen ignores altogether the

fact that the IJ pretermitted her asylum application as

untimely. Thus, that finding stands as a valid basis for

the denial of that relief. See 8 U.S.C. § 1158(a)(2)(B). 

With respect to Chen’s application for withholding of

removal, although it may have been an error for the IJ to

base her adverse credibility determination, in part, on

Chen’s submission of fraudulent documents without first

making an explicit finding that Chen knew the documents to

be fraudulent, see Corovic, 519 F.3d at 97-98, substantial

evidence remains to support the agency’s adverse credibility
In arguing that the IJ erred in basing her *

credibility determination on Chen’s submission of

fraudulent documents without first finding that Chen knew

that the documents were fraudulent, Chen relies entirely

on Ninth Circuit precedent. Indeed, Chen cites not a

single case from this Circuit in her brief. Petitioner’s

counsel is reminded that cases from other circuits are

not binding precedent in this Court.

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determination. See Xiao Ji Chen v. U.S. Dep’t of Justice,

*

471 F.3d 315, 339 (2d Cir. 2006) (finding that the Court

need not remand, despite errors in the agency’s decision,

where doing would be futile, i.e., when the Court can

“‘confidently predict’ that the agency would reach the same

decision absent the errors that were made.”). 

The IJ reasonably relied on discrepancies between

Chen’s hearing testimony and her asylum application,

including inconsistencies in her account of the events

following her alleged forced abortion and whether she worked

in China after her abortion. The IJ did not err in

declining to credit Chen’s explanations for those

discrepancies, see Majidi v. Gonzales, 430 F.3d 77, 80-81

(2d Cir. 2005), or in concluding that their cumulative

effect was to undermine Chen’s overall credibility. See Tu

Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006). 

Furthermore, the IJ reasonably relied on Chen’s evasive

demeanor in finding her not credible. See Majidi, 430 F.3d

at 81.

Ultimately, because a reasonable fact-finder would not

be compelled to conclude to the contrary, the IJ’s adverse

credibility determination was supported by substantial

evidence. See Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d

Cir. 2007) (per curiam). To the extent Chen’s claim was

based on her fear of persecution under China’s family

planning policy, the agency’s denial of Chen’s application

for withholding of removal and CAT relief was proper. See

Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wu Biao

Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003) (per curiam). 

In addition, because Chen failed to present any evidence

that she would more likely than not be tortured upon her

return to China because of her illegal departure, the
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agency’s denial of her claim for CAT relief on that basis

was also proper. See Mu Xiang Lin v. U.S. Dep’t of Justice,

432 F.3d 156, 159-60 (2d Cir. 2005).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk