08-3201-ag(L); 09-0784-ag(Con)

Chen v. Holder BIA Schopper t, IJ A098 892 773 

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

# SUM MARY 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 8 day of February, two thousand ten. th 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 PIERRE N. LEVAL, 10 PETER W. HALL, 11 Circuit Judges . 12

_______________________________________ 13 14 JUN SONG CHEN, 15 Petitioner , 16 08-3201-ag (L); 17 v. 09-0784-ag (Con) 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent . 22

_______________________________________ 23 24 25 FOR PETITIONER: Dehai Zhang, Flushing, New York.2 1 FOR RESPONDENT: Tony West, Assistant Attorney 2 General; Barry J. Pettinato, 3 Assistant Director; Tim Ramnitz, 4 Attorney, Office of Immigration 5 Litigation, United States Department 6 of Justice, Washington, D.C. 7 8 UPON DUE CONSIDERATION of these petitions for review of 9 two Board of Immigration Appeals (“BIA”) decisions, it is 1 0 hereby ORDERED, ADJUDGED, AND DECREED, that these petitions 1 1 for review are DENIED. 1 2 Jun Song Chen, a native and citizen of the People’s 1 3 Republic of China, seeks review of: (1) a June 5, 2008 order 1 4 of the BIA, affirming the September 22, 2006 decision of 1 5 Immigration Judge (“IJ”) Douglas Schoppert, which denied his 1 6 application for asylum, withholding of removal, and relief 1 7 under the Convention Against Torture (“CAT”), In re Jun Song 18 Chen , No. A098 892 773 (B.I.A. June 5, 2008), aff’gNo. A098 1 9 892 773 (Immig. Ct. N.Y. City Sept. 22, 2006); and (2) a 2 0 February 19, 2009 order of the BIA, denying his motion to 2 1 reopen, In re Jun Song Chen , No. A098 892 773 (B.I.A. Feb. 2 2 19, 2009). We assume the parties’ familiarity with the 2 3 underlying facts and procedural history in this case. 24 I. Docket Number 08-3201-ag 2 5 We review the agency’s factual findings, including 2 6 adverse credibility findings, under the substantial evidence 2 7 standard. See8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia3 1 Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). We 2 review de novoquestions of law and the application of law 3 to undisputed fact. Salimatou Bah v. Mukasey , 529 F.3d 99, 4 110 (2d Cir. 2008). 5 Substantial evidence supports the IJ’s adverse 6 credibility determination. In rendering his decision, the 7 IJ did not err in finding implausible that Chen’s father 8 would submit an affidavit in support of his son’s asylum 9 application, when Chen’s father allegedly beat him severely 1 0 on two occasions because of Chen’s homosexuality. See Siewe 11 v. Gonzales , 480 F.3d 160, 168-69 (2d Cir. 2007) (finding 1 2 that “speculation that inheres in inference is not ‘bald’ if 1 3 the inference is made available to the factfinder by record 1 4 facts, or even a single fact, viewed in the light of common 1 5 sense and ordinary experience.”); see also id. at 168 1 6 (“record support for a contrary inference—even one more 1 7 plausible or more natural—does not suggest error”). The 1 8 implausibility finding is further supported by the striking 1 9 similarities of substance and wording between Chen’s 2 0 father’s letter and Chen’s own statement. See Mei Chai Ye 21 v. U.S. Dep’t of Justice , 489 F.3d 517, 524 (2d Cir. 2007) 2 2 (stating that “striking similarities between affidavits are 2 3 an indication that the statements are ‘canned’”); Surinder4 1 Singh v. BIA , 438 F.3d 145, 148 (2d Cir. 2006); see also 2 Ying Li v. BCIS , 529 F.3d 79, 82 (2d Cir. 2008) (“[W]hen an 3 adverse credibility finding is based partly or entirely on 4 implausibility, [this Court] review[s] the entire record, 5 not whether each unusual or implausible feature of the 6 account can be explained or rationalized.”). Having called 7 Chen’s credibility into question, the IJ also reasonably 8 relied on his failure to submit corroborating evidence from 9 his boyfriend. See Biao Yang v. Gonzales , 496 F.3d 268, 273 1 0 (2d Cir. 2007) (recognizing that an applicant’s failure to 1 1 corroborate his testimony may bear on credibility because 1 2 the absence of corroboration in general makes an applicant 1 3 unable to rehabilitate testimony that has already been 1 4 called into question); see also Maladho Djehe Diallo v. 15 Gonzales , 445 F.3d 624, 633-34 (2d Cir. 2006). 1 6 Because a reasonable fact-finder would not be compelled 1 7 to conclude to the contrary, the IJ’s adverse credibility 1 8 determination was supported by substantial evidence. See 19 Xiu Xia Lin , 534 F.3d at 165-66. The agency therefore 2 0 properly denied Chen’s applications for asylum, withholding 2 1 of removal, and CAT relief insofar as they were based on his 2 2 sexual orientation. See Paul v. Gonzales , 444 F.3d 148, 156 2 3 (2d Cir. 2006).5 1 Substantial evidence also supports the agency’s denial 2 of Chen’s application for CAT relief based on his claim of a 3 likelihood of torture for having departed China illegally. 4 Notwithstanding generalized evidence indicating that torture 5 occurs in Chinese prisons, an applicant cannot demonstrate 6 that he is more likely than not to be tortured “based solely 7 on the fact that []he is part of the large class of persons 8 who have left China illegally.” Mu Xiang Lin v. U.S. Dep’t 9 of Justice , 432 F.3d 156, 159-60 (2d Cir. 2005); see also 10 Pierre v. Gonzales , 502 F.3d 109, 118-19 (2d Cir. 2007) 1 1 (holding that beyond evidence of inhumane prison conditions, 1 2 a CAT claimant must provide some evidence that the 1 3 authorities act with the specific intent to inflict severe 1 4 physical or mental pain or suffering on those detained). 1 5 Because Chen provided no basis for the agency to conclude 1 6 that he, or someone in his “particular alleged 1 7 circumstances,” faces an elevated risk of persecution or 1 8 torture, Mu-Xing Wang v. Ashcroft , 320 F.3d 130, 143-44 (2d 1 9 Cir. 2003), the agency did not err in denying his 2 0 application for CAT relief based on his illegal departure. 21 See Mu Xiang Lin , 432 F.3d at 160; see also Mu-Xing Wang, 2 2 320 F.3d at 143-44 .6 1 II. Docket Number 09-0784-ag 2 The BIA’s denial of a motion to reopen is reviewed for 3 abuse of discretion. See Kaur v. BIA , 413 F.3d 232, 233 (2d 4 Cir. 2005) (per curiam). When the agency considers relevant 5 evidence of country conditions in evaluating a motion to 6 reopen, we review the agency’s factual findings under the 7 substantial evidence standard. See Jian Hui Shao v. 8 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). The BIA did not 9 abuse its discretion in denying Chen’s motion to reopen 1 0 based on his failure to establish his prima facie 1 1 eligibility for relief. See INS v. Abudu , 485 U.S. 94, 104 1 2 (1988). 1 3 As the BIA concluded, Chen did not establish his prima 14 facieeligibility for relief because he failed to show that 1 5 the Chinese government was aware of or was likely to become 1 6 aware of his China Democracy Party (“CDP”) activities in the 1 7 United States. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 1 8 143 (2d Cir. 2008). The BIA did not err in rejecting as 1 9 insufficient the generalized statement in the 2005 U.S. 2 0 Department of State “Profile of Asylum Claims and Country 2 1 Conditions” that “[t]he Chinese government sometimes 2 2 monitors the political activities of students or exchange7 1 scholars living abroad.” See Jian Hui Shao v. Mukasey, 546 2 F.3d 138, 169-72 (2d Cir. 2008) (noting that “[w]e do not 3 ourselves attempt to resolve conflicts in record evidence, a 4 task largely within the discretion of the agency”). 5 The evidence that Chen submitted in support of his 6 motion to reopen did not indicate that he had been publicly 7 identified as a CDP member and therefore did not show that 8 the Chinese government would likely discover his CDP 9 activities in the United States. Because the BIA did not 1 0 err in finding that Chen failed to demonstrate his prima 11 facie eligibility for relief based on his CDP activities, it 1 2 did not abuse its discretion in denying his motion to 1 3 reopen. See Abudu , 485 U.S. at 104.

For the foregoing reasons, the petitions for review are 14 1 5 DENIED. As we have completed our review, any stay of 1 6 removal that the Court previously granted in these petitions 1 7 is VACATED, and any pending motion for a stay of removal in 1 8 these petitions is DISMISSED as moot. Any pending request 1 9 for oral argument in these petitions is DENIED in accordance 2 0 with Federal Rule of Appellate Procedure 34(a)(2), and 2 1 Second Circuit Local Rule 34(b). 2 2 FOR THE COURT: 2 3 Catherine O’Hagan Wolfe, Clerk 24 25 26