18

- 3412 Chen v. Barr BIA Poczter , IJ A 206 895 272 

### 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 TO 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** 1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **1 s**  **t da**  **y of O**  **c t**  **o b**  **e r**  **, two thousand twenty**  **.** 4 5 **PRESENT:** 6 **DENNIS JACOBS ,**  7 **DENNY CHIN ,**  8 **JOSEPH F. BIANCO ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **ZHIQIANG CHEN, AKA ZHI CHEN ,**  13 **Petitioner ,**  14 15
**v. 18** 
**- 3412**  16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES**  18 **ATTORNEY GENERAL ,**  19 **Respondent .**  20

**_____________________________________** 21 22 **FOR PETITIONER :**  John Chang , Esq., New York , N Y

. 23 24 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 25 Assistant Attorney General ; 26 Bria n ne Whelen Cohen , Senior 27 Litigation Counsel ; Ashley Martin , 282 Trial Attorney , Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D C. 4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 7

is DENIED. 8

Petitioner Zhiq iang Chen , a native and citizen of the 9
People’s Republic of China , seeks review of a November 5, 10

2018 decision of the BIA affirming a November 17 , 2017 11
decision of an Immigration Judge (“IJ”) denying Chen’s 12
application for asylum, withholding of removal, and relief 13
under the Convention Against Torture (“CAT”). In re Zhiqiang 14

Chen , No. A 206 895 272 (B.I.A. Nov. 5, 2018 ), aff’g No. A 15

206 895 272 (Immig. Ct. N.Y. City Nov. 17, 2017) . We assume 16

the parties’ familiarity with the underlying facts and 17
procedural history in this case. 18
Under the circumstances of this case, we have reviewed 19
the IJ’s decision as modified by the BIA, i.e., minus the 20
findings the BIA declined to rely on. See Xue Hong Yang v. 21
U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 22

Because Chen has not challenged the agency’s alternative 233 denial of his future persecution claim based on his practice 1
of Christianity in the United States , only the adverse 2
credibility determinat ion as stated by the BIA is before us. 3

See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 4
2005) (finding CAT claim abandoned where it was not argued in 5
petitioner’s brief). The applicable standards of review are 6

well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao 7

v. Sessions , 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse 8
credibility determination for substantial evidence). 9
“Considering the totality of the circ umstances, and all 10
relevant factors, a trier of fact may base a credibility 11
determination on . . . the consistency between the applicant’s 12
. . . written and oral statements . . . , the internal 13
consistency of each such statement, [and] the consistency of 14

s uch statements with other evidence of record .

. . without 15
regard to whether an inconsistency, inaccuracy, or falsehood 16
goes to the heart of the applicant’s claim, or any other 17

relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer 18

. . . to an IJ’s c redibility determination unless, from the 19
totality of the circumstances, it is plain that no reasonable 20

fact

- finder could make such an adverse credibility ruling.” 214 Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); 1
accord Hong Fei Gao , 891 F.3d at 76. We conclude that t he 2
agency’s adverse credibility determination is supported by 3

substantial evidence. 4
Multiple inconsistencies provide substantial support for 5
the agency’s adverse credibility determination. Chen’s 6
testimony was inconsistent with his mother’s statement about 7
how many people came to their house to demolish their property 8
in June 2014, who called the police after th is incident, the 9
name of the friend who introduced Chen to Christianity in 10
August 2014, and when the police raided Chen’s c hurch

. Taken 11
together, these inconsistencies constitute substantial 12
evidence for the agency’s conclusion that Chen was not 13

credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 14
534 F.3d at 167 (permitting consideration of discrepancies 15
between the petitioner ’s testimony and letters from third 16
parties). The IJ was not compelled to accept Chen’s shifting 17
explanations for these discrepancies

. S ee Majidi v. 18

Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 19
do more than offer a plausible explanation f or his 20

inconsistent statements to secure relief; he must demonstrate 215 that a reasonable fact

- finder would be compelled to credit 1
his testimony.” (internal quotation marks omitted)). 2
The agency also properly relied on Chen’s omission from 3
his asylum appli cation of a second beating by the village 4
officials who destroyed his property. In his asylum 5
application, Chen identified only one beating by the village 6
officials who allegedly destroyed his property. But he later 7

testified that the same men beat him a second time two days 8
later, prompting his mother to call the police again

. His 9
explanation that he thought mentioning only one beating was 10
“enough” in his statement is not persuasive, Certified 11

Administrative Record (“CAR”) a t 116, particularly given the 12
detailed written statement he attached to his application , 13

s ee Majidi , 430 F.3d at 80. We find no error in the agency’s 14

reliance on this omission because it was a physical assault 15
that was central to both his past harm and t he motivation for 16
his practice of Christianity. See Ming Zhang v. Holder , 585 17
F.3d 715, 726 (2d Cir. 2009) (holding that the agency may 18
“draw an adverse inference about petitioner’s credibility 19

based, inter alia , on h[is] failure to mention” important 20

det ails or events in prior statements); see also Hong Fei 216 Gao , 891 F.3d at 78 (“ [T] he probative value of a witness’s 1
prior silence on particular facts depends on whether those 2
facts are ones the witness would reasonably have been expected 3

to disclose

. ”). 4
Having questioned Chen’s credibility, the agency 5
reasonably relied on his failure to rehabilitate his 6
testimony with reliable corroborating evidence. S ee Biao 7
Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (“An 8
applicant’s failure to corroborate his o r her testimony may 9
bear on credibility, because the absence of corroboration in 10
general makes an applicant unable to rehabilitate testimony 11
that has already been called into question.”). The agency 12
did not err in declining to afford significant weight to 13

letters from Chen’s friend and mother because his mother was 14

an interested witness and her letter was inconsistent with 15

Chen’s statements, and both authors were not available for 16

cross

- examination. See Y.C. v. Holder , 741 F.3d 324, 332, 17

334 (2d Cir. 2013 ) (holding that weight of evidence is with in 18
agency discretion and deferring to agency’s decision to 19
afford little weight to spouse’s letter because it was unsworn 20

and from an interested witness) ; s ee also In re H

- L

- H

- & Z

- 217 Y

- Z

- , 25 I. & N. Dec. 209, 215 (B

. I

. A

. 2010) (finding that 1
unsworn letters from alien’s friends and family were 2
insufficient to provide substantial support for alien’s 3
claims because they were from interested witnesses not 4
subject to cross

- examination), overruled on other grounds by 5

Hui L in Huang v. Holder , 677 F.3d 130 (2d Cir. 2012 ). 6
Chen devotes most of his brief to arguing that a 7
September 2014 arrest warrant from the Chinese police 8
corroborates that he was in fact arrested in September 2014 9
after the police raided his church and thus rehabilitates his 10
testimony. However, t he warrant , which the agency 11

considered , does not resolve the other substantial 12
discrepanc ies between Chen’s testimony and his mother’s 13

letter

– including, but not limited to, the date of Chen’s 14

arrest

- and the agency has broad discretion in the weight it 15

affords to documents. See Y.C. , 741 F.3d at 332. 16
Accordingly, given the inconsistencies between Chen’s 17

and his mother’s statements and the omission from his 18
application, the adverse credibility determination is 19
supported by substantial evidence. See Xiu Xia Lin , 534 F.3d 20

at 165

– 66; see also Xian Tuan Ye v. D ep’t of Homeland Sec. , 218 446 F.3d 289, 295 (2d Cir. 2006) (holding that even a single 1
inconsistency is sufficient to support an adverse credibility 2
determination if it is material and relates to “an example of 3
the very persecution from which” the applicant seeks relief). 4

The adve rse credibility determination is dispositive of 5
asylum, withholding of removal, and CAT relief because all 6

forms of relief were based on the same discredited factual 7
predicate. See Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d 8

Cir. 2006). 9
For the foregoin g reasons, the petition for review is 10

DENIED

. All pending motions and applications are DENIED and 11

stays VACATED. 12

FOR THE COURT: 13 Catherine O ’ Hagan Wolfe , 14 Clerk of Court 15