12-25

Chen v. Holder

BIA

Wiesel, IJ

A089 096 383

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 Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 27th day of February, two thousand thirteen.

PRESENT:

RICHARD C. WESLEY,

DEBRA ANN LIVINGSTON,

SUSAN L. CARNEY,

Circuit Judges.

_______________________________________

DAN JIN CHEN,

Petitioner, 

 v. 12-25

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: David A. Bredin, New York, New York.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Jennifer L.

Lightbody, Senior Litigation

Counsel; Robbin K. Blaya, 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.

Dan Jin Chen, a native and citizen of the People’s

Republic of China, seeks review of a December 16, 2011

decision of the BIA affirming the November 20, 2009 decision

of the Immigration Judge (“IJ”), which denied her

application for asylum, withholding of removal, and relief

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

Chen, No. A089 096 383 (B.I.A. Dec. 16, 2011), aff’g No.

A089 096 383 (Immig. Ct. N.Y. City, Nov. 20, 2009). We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

We have reviewed the IJ’s decision as supplemented by

the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

Cir. 2005). The applicable standards of review are wellestablished. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

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

asylum applications like Chen’s, governed by the REAL ID

Act, the agency may, “[c]onsidering the totality of the

circumstances . . . base a credibility finding on . . . the

consistency between the applicant’s or witness’s written or

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oral statements . . . without regard to whether an

inconsistency . . . goes to the heart of the applicant’s

claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

F.3d at 167. We “defer to an IJ’s credibility determination

unless, from the totality of the circumstances, it is plain

that no reasonable fact-finder could make such an adverse

credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

Substantial evidence supports the agency’s adverse

credibility determination. That determination was based on

inconsistencies between Chen’s original asylum application,

in which she alleged that she was forced to undergo an

abortion in March 2008, and her amended application and

testimony before the IJ, in which she stated that the

abortion occurred in December 2007. See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Chen’s

explanation for this inconsistency – that she made a mistake

on her initial application and attempted to correct it – was

insufficient to compel the agency to credit it, given her

later testimony that she was not aware of what was in the

initial application, and in light of other inconsistencies

in her applications that were identified by the IJ. See

Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); Xiao

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Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

2006). Substantial evidence thus supports the IJ’s adverse

credibility determination, which serves as a dispositive

basis for the agency’s denial of asylum, withholding of

removal, and CAT relief based on Chen’s family planning

claim. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

F.3d at 165-66; see also Paul v. Gonzales, 444 F.3d 148, 156

(2d Cir. 2006) (Withholding); Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 523 (2d Cir. 2005) (CAT).

Chen also challenges the BIA’s independent denial of

relief based on her practice of Christianity. The agency

did not err, however, in finding that Chen failed to

demonstrate an objectively reasonable fear of future

persecution, because she presented no evidence that the

Chinese authorities were aware or are likely to become aware

of her practice of Christianity, and merely made a

perfunctory assertion that she would be harmed as a result

of her participation in an underground church. See

Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);

Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)

(per curiam). 

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Finally, the BIA reasonably determined that Chen failed

to establish her eligibility for CAT relief based on her

illegal departure from China as she presented no

particularized evidence suggesting that she would likely be

tortured. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432

F.3d 156, 157–60 (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 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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