09-2930-ag

Chen v. Holder

BIA

Rohan, IJ

A094 915 837

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 9 day of September, two thousand ten. th

5

6 PRESENT:

7 ROGER J. MINER,

8 PETER W. HALL,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _______________________________________

12

13 YONG BIN CHEN,

14 Petitioner, 

15

16 v. 09-2930-ag

17

18 ERIC H. HOLDER, JR., U.S. ATTORNEY 

19 GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Waisim M. Cheung, New York, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Francis W. Fraser, Senior

28 Litigation Counsel; W. Daniel Shieh,

29 Trial Attorney, Office of

30 Immigration Litigation, Washington

31 D.C.
2

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 petition for review is

4 DENIED.

5 Petitioner Yong Bin Chen, a native and citizen of China,

6 seeks review of the June 11, 2009 order of the BIA affirming

7 the September 26, 2007 decision of Immigration Judge (“IJ”)

8 Patricia A. Rohan denying his application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Yong Bin Chen, No. A094 915

11 837 (B.I.A. June 11, 2009), aff’g No. A094 915 837 (Immigr.

12 Ct. N.Y. City Sept. 26, 2007). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we review both

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

17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable

18 standards of review are well-established. See 8 U.S.C.

19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20 (2d Cir. 2009).

21 Substantial evidence supports the agency’s adverse

22 credibility determination. As a preliminary matter, Chen
3

1 does not challenge the IJ’s findings that: (1) he failed to

2 offer reasonably available corroborating evidence; and (2)

3 he provided inconsistent testimony regarding whether he was

4 baptized at an official “patriotic” church. Rather, Chen

5 incorrectly argues that “the BIA decision merely cited [his]

6 lack of detailed reference [to] the two arrest/detention

7 incidents in his asylum statement as the only basis for its

8 adverse credibility determination.” Pet’r’s Br. 6. To the

9 contrary, the BIA “adopt[ed] and affirm[ed]” the IJ’s

10 decision, noting Chen’s “changing responses when questioned

11 about implausibilities” and “lack of reasonably available

12 corroborating evidence.” Chen has therefore waived any

13 challenge to these findings, and they stand as valid bases

14 for the agency’s adverse credibility determination. See

15 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). 

16 With respect to the finding Chen does challenge, the

17 BIA reasonably found that his omission of his 2004 and 2006

18 detentions from his asylum application undermined his

19 credibility. This omission was significant because: (1) the

20 detentions were the central basis for his claim of past

21 persecution, rather than details to be fleshed out during

22 his testimony; and (2) he prepared his application with the
4

1 assistance of an attorney. Under the REAL ID Act, “an IJ

2 may rely on any inconsistency or omission in making an

3 adverse credibility determination as long as the ‘totality

4 of the circumstances’ establishes that the asylum applicant

5 is not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

6 (2d Cir. 2008) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). 

7 Thus, Chen’s omission of his detentions, one of which

8 allegedly lasted for ten days with minimal food, was a

9 proper basis for the agency’s adverse credibility

10 determination. Furthermore, the BIA did not err in

11 rejecting Chen’s explanation that he did not include the

12 detentions in his asylum application because he planned to

13 supplement the application in light of the fact that he

14 included a supplemental statement with the application at

15 the time of filing. See Majidi v. Gonzales, 430 F.3d 77,

16 80-81 (2d Cir. 2005) (the agency need not credit an

17 applicant’s explanations for inconsistent testimony unless

18 those explanations would compel a reasonable fact-finder to

19 do so).

20 Ultimately, the agency’s credibility determination was

21 supported by substantial evidence. See 8 U.S.C.

22 § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167. Therefore,
5

1 it did not err in denying Chen’s application for asylum and

2 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,

3 156 (2d Cir. 2006). Chen does not challenge the agency’s

4 denial of CAT relief. 

5 For the foregoing reasons, the petition for review is

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

7 removal that the Court previously granted in this petition

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

9 this petition is DISMISSED as moot. Any pending request for

10 oral argument in this petition is DENIED in accordance with

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

12 Circuit Local Rule 34.1(b).

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

15

16