12-602

Chen v. Holder

BIA

LaForest, IJ

A089 253 557

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 Thurgood Marshall United

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

on the 24th 4 day of April, two thousand thirteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 RICHARD C. WESLEY,

9 GERARD E. LYNCH,

10 Circuit Judges. 

11 _____________________________________

12

13 JIAN ZHONG CHEN,

14 Petitioner, 

15

16 v. 12-602

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Peter D. Lobel, New York, New York.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Terri J. Scadron,

27 Assistant Director; Hillel R. Smith,

28 Attorney, Office of Immigration

29 Litigation, Civil Division, United

30 States Department of Justice,

31 Washington, D.C.
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

4 is DENIED.

5 Jian Zhong Chen, a native and citizen of the People’s

6 Republic of China, seeks review of a January 19, 2012, order

7 of the BIA, affirming the September 23, 2009, decision of

8 Immigration Judge (“IJ”) Brigitte LaForest, which denied his

9 application for asylum, withholding of removal, and relief

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

11 Zhong Chen, No. A089 253 557 (B.I.A. Jan. 19, 2012), aff’g

12 No. A089 253 557 (Immig. Ct. N.Y. City Sept. 23, 2009). 

13 We assume the parties’ familiarity with the underlying facts

14 and procedural history.

15 Under the circumstances of this case, we review both

16 the BIA’s and the IJ’s opinions. Zaman v. Mukasey, 514 F.3d

17 233, 237 (2d Cir. 2008). We review the agency’s legal

18 conclusions de novo and uphold its factual findings “if they

19 are supported by reasonable, substantial and probative

20 evidence in the record.” Yanqin Weng v. Holder, 562 F.3d

21 510, 513 (2d Cir. 2009) (internal quotation marks omitted);

22 see also 8 U.S.C. § 1252(b)(4)(B). 

23

2
1 To establish eligibility for asylum, an applicant must

2 show that he has suffered past persecution or has a well3 founded fear of future persecution “on account of race,

4 religion, nationality, membership in a particular social

5 group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). 

6 Where, as here, an asylum application is governed by the

7 REAL ID Act, the agency may, after considering the totality

8 of the circumstances, base an adverse credibility finding on

9 the applicant’s demeanor, the plausibility of his account,

10 and inconsistencies in his statements, without regard to

11 whether they go “to the heart of the applicant’s claim.” 8

12 U.S.C. § 1158(b)(1)(B)(iii). 

13 Substantial evidence supports the agency’s

14 determination that Chen did not testify credibly regarding

15 his family planning claim, and that determination formed an

16 adequate basis for denying relief. “[A]n IJ may rely on any

17 inconsistency or omission in making an adverse credibility

18 determination as long as the totality of the circumstances

19 establishes that an asylum applicant is not credible.” Xiu

20 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)

21 (internal quotation marks omitted). In finding Chen not

22 credible, the agency reasonably relied on multiple

3
1 discrepancies both within Chen’s testimony and between

2 Chen’s testimony and other evidence in the record. 

3 For example, Chen’s testimony regarding his second

4 daughter’s birthplace did not comport with the information

5 on her birth certificate. Chen conceded that the birth

6 certificate was fake. See Siewe v. Gonzales, 480 F.3d 160,

7 170 (2d Cir. 2007) (noting that once an IJ concludes that a

8 document is false, he or she is “free to deem suspect other

9 documents (and to disbelieve other testimony) that depend

10 for probative weight upon [the applicant’s] veracity”). 

11 Additionally, there were inconsistencies between Chen’s

12 testimony and a letter from his wife describing an alleged

13 May 2004 assault by Chinese family planning officials. 

14 Contrary to Chen’s argument, the agency was not required to

15 find that a medical record he submitted rehabilitated his

16 testimony about the assault, as the report confirmed an

17 injury but provided no information about the motive behind

18 the attack or the identity of the individuals who

19 perpetrated it. See Biao Yang v. Gonzales, 496 F.3d 268,

20 273 (2d Cir. 2007) (holding that a failure to corroborate,

21 and thereby rehabilitate, testimony that has been called

4
1 into question can bear negatively on an applicant’s

2 credibility). 

3 Chen also failed to provide a consistent account of the

4 circumstances surrounding his alleged escape from detention

5 in May 2005, as well as when and where his wife was in

6 hiding following that escape. Finally, Chen’s testimony

7 that he was in hiding continuously from May 2005 until March

8 2007 is undermined by a residence identification card that

9 was issued to him in April 2006. 

10 The agency reasonably concluded that Chen failed to

11 provide compelling explanations for these discrepancies. “A

12 petitioner must do more than offer a plausible explanation

13 for his inconsistent statements to secure relief; he must

14 demonstrate that a reasonable fact-finder would be compelled

15 to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77,

16 80 (2d Cir. 2005) (internal quotation marks omitted). Chen

17 claims that he suffers from a medical condition that impairs

18 his memory and renders him incapable of providing clear and

19 consistent testimony, but the medical record he submitted to

20 support that claim indicates only that Chen received

21 treatment for upper back and knee pain in May 2004. 

22 Accordingly, because a reasonable fact-finder would not be

5
1 compelled to excuse the many discrepancies in Chen’s

2 testimony, the agency’s adverse credibility determination is

3 supported by substantial evidence. See Biao Yang, 496 F.3d

4 at 273. 

5 Chen contends that his claim of a well-founded fear of

6 future persecution is not precluded by the adverse

7 credibility finding. This argument is without merit, as the 

8 only asserted basis for such a fear is the past persecution

9 he allegedly suffered for violating China’s family planning

10 policy. See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.

11 2006) (“[A]n applicant may prevail on a theory of future

12 persecution despite an IJ’s adverse credibility ruling as to

13 past persecution, so long as the factual predicate of the

14 applicant’s claim of future persecution is independent of

15 the testimony that the IJ found not to be credible.”). 

16 Therefore, the agency’s denial of asylum was not

17 erroneous. Nor was its denial of withholding of removal and

18 CAT relief. A withholding claim is precluded when it is

19 “based on the very fact, or set of facts, that the IJ found

20 not to be credible” with respect to an asylum claim. Id. at

21 156 (withholding of removal). Similarly, a CAT claim fails

22 where the agency has made an “affirmable finding” that a set

6
1 of facts supporting “the only potentially valid basis” for

2 the claim have not been established. Xue Hong Yang v. U.S.

3 Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). Because

4 all three of Chen’s claims share the same factual predicate,

5 denial of each was supported by the agency’s adverse

6 credibility finding.

7 For the foregoing reasons, the petition for review is

8 DENIED. Chen’s pending motion for a stay of removal is

9 DENIED as moot. 

10 FOR THE COURT: 

11 Catherine O’Hagan Wolfe, Clerk

7