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

Chen v. Holder

BIA

Schoppert, IJ

A098 892 773

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 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

10 hereby ORDERED, ADJUDGED, AND DECREED, that these petitions

11 for review are DENIED.

12 Jun Song Chen, a native and citizen of the People’s

13 Republic of China, seeks review of: (1) a June 5, 2008 order

14 of the BIA, affirming the September 22, 2006 decision of

15 Immigration Judge (“IJ”) Douglas Schoppert, which denied his

16 application for asylum, withholding of removal, and relief

17 under the Convention Against Torture (“CAT”), In re Jun Song

18 Chen, No. A098 892 773 (B.I.A. June 5, 2008), aff’g No. A098

19 892 773 (Immig. Ct. N.Y. City Sept. 22, 2006); and (2) a

20 February 19, 2009 order of the BIA, denying his motion to

21 reopen, In re Jun Song Chen, No. A098 892 773 (B.I.A. Feb.

22 19, 2009). We assume the parties’ familiarity with the

23 underlying facts and procedural history in this case.

24 I. Docket Number 08-3201-ag

25 We review the agency’s factual findings, including

26 adverse credibility findings, under the substantial evidence

27 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
3

1 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). We

2 review de novo questions 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

10 on two occasions because of Chen’s homosexuality. See Siewe

11 v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (finding

12 that “speculation that inheres in inference is not ‘bald’ if

13 the inference is made available to the factfinder by record

14 facts, or even a single fact, viewed in the light of common

15 sense and ordinary experience.”); see also id. at 168

16 (“record support for a contrary inference—even one more

17 plausible or more natural—does not suggest error”). The

18 implausibility finding is further supported by the striking

19 similarities of substance and wording between Chen’s

20 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)

22 (stating that “striking similarities between affidavits are

23 an indication that the statements are ‘canned’”); Surinder
4

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

10 (2d Cir. 2007) (recognizing that an applicant’s failure to

11 corroborate his testimony may bear on credibility because

12 the absence of corroboration in general makes an applicant

13 unable to rehabilitate testimony that has already been

14 called into question); see also Maladho Djehe Diallo v.

15 Gonzales, 445 F.3d 624, 633-34 (2d Cir. 2006). 

16 Because a reasonable fact-finder would not be compelled

17 to conclude to the contrary, the IJ’s adverse credibility

18 determination was supported by substantial evidence. See

19 Xiu Xia Lin, 534 F.3d at 165-66. The agency therefore

20 properly denied Chen’s applications for asylum, withholding

21 of removal, and CAT relief insofar as they were based on his

22 sexual orientation. See Paul v. Gonzales, 444 F.3d 148, 156

23 (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)

11 (holding that beyond evidence of inhumane prison conditions,

12 a CAT claimant must provide some evidence that the

13 authorities act with the specific intent to inflict severe

14 physical or mental pain or suffering on those detained). 

15 Because Chen provided no basis for the agency to conclude

16 that he, or someone in his “particular alleged

17 circumstances,” faces an elevated risk of persecution or

18 torture, Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d

19 Cir. 2003), the agency did not err in denying his

20 application for CAT relief based on his illegal departure.

21 See Mu Xiang Lin, 432 F.3d at 160; see also Mu-Xing Wang,

22 320 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

10 based on his failure to establish his prima facie

11 eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104

12 (1988). 

13 As the BIA concluded, Chen did not establish his prima

14 facie eligibility for relief because he failed to show that

15 the Chinese government was aware of or was likely to become

16 aware of his China Democracy Party (“CDP”) activities in the

17 United States. See Hongsheng Leng v. Mukasey, 528 F.3d 135,

18 143 (2d Cir. 2008). The BIA did not err in rejecting as

19 insufficient the generalized statement in the 2005 U.S.

20 Department of State “Profile of Asylum Claims and Country

21 Conditions” that “[t]he Chinese government sometimes

22 monitors the political activities of students or exchange
7

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

10 err in finding that Chen failed to demonstrate his prima

11 facie eligibility for relief based on his CDP activities, it

12 did not abuse its discretion in denying his motion to

13 reopen. See Abudu, 485 U.S. at 104.

14 For the foregoing reasons, the petitions for review are

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

16 removal that the Court previously granted in these petitions

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

18 these petitions is DISMISSED as moot. Any pending request

19 for oral argument in these petitions is DENIED in accordance

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

21 Second Circuit Local Rule 34(b).

22 FOR THE COURT: 

23 Catherine O’Hagan Wolfe, Clerk

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