10-5009-ag

Chen v. Holder

BIA

Chew, IJ

A078 691 807

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. 

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

New York, on the 24th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 RICHARD C. WESLEY,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _____________________________________ 12

13 Hong Chen,

14 Petitioner, 15

16 v. 10-5009-ag

17 NAC

18 Eric H. Holder, Jr., Attorney

19 General of the United States,

20 Immigration & Naturalization

21 Service,

22 Respondents.

23 _____________________________________

24

25 FOR PETITIONER: Hong Chen, pro se, New York, New

26 York.

27

28 FOR RESPONDENTS: Tony West, Assistant Attorney

29 General; Greg D. Mack, Senior

30 Litigation Counsel; Colin J. Tucker,

31 Trial Attorney, Office of

32 Immigration Litigation, United

33 States Department of Justice,

34 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DISMISSED in part and DENIED in part.

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

6 Republic of China, seeks review of a November 23, 2010,

7 decision of the BIA affirming the November 13, 2008,

8 decision of immigration judge (“IJ”) George T. Chew, which

9 pretermitted his application for asylum and denied his

10 applications for withholding of removal and relief under the

11 Convention Against Torture (“CAT”). In re Hong Chen, No.

12 A078 691 807 (B.I.A. Nov. 23, 2010), aff’g No. A078 691 807

13 (Immig. Ct. N.Y. City Nov. 13, 2008). We assume the

14 parties’ familiarity with the underlying facts and

15 procedural history of this case.

16 Under the circumstances of this case, we have

17 considered both the IJ’s and the BIA’s opinions “for the

18 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237

19 (2d Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528

20 (2d Cir. 2006)). The applicable standards of review are

21 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

22 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

2
1 A. Asylum

2 We lack jurisdiction to review the IJ’s decision

3 insofar as it pretermitted Chen’s untimely asylum

4 application because he does not present a constitutional

5 claim or question of law with respect to that determination. 

6 See 8 U.S.C. § 1158(a)(3); Gui Yin Liu v. INS, 508 F.3d

7 716, 720 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of

8 Justice, 471 F.3d 315, 329-30 (2d Cir. 2006). Accordingly,

9 we dismiss Chen’s petition for review to this extent. See

10 Xiao Ji Chen, 471 F.3d at 329. However, we may review the

11 agency’s denial of withholding of removal and CAT relief. 

12 See id. at 332-33.

13 B. Withholding of Removal and CAT 

14 For applications like Chen’s that are governed by the

15 REAL ID Act of 2005, the agency may, considering the

16 totality of the circumstances, base a credibility finding

17 upon an applicant’s demeanor, the plausibility of his

18 account, and inconsistencies in his statements, without

19 regard to whether they go “to the heart of the applicant’s

20 claim.” 8 U.S.C. § 1229a(c)(4)(C). Here, the agency’s

21 adverse credibility determination is supported by

22 substantial evidence. 

3
1 In finding Chen not credible, the agency reasonably

2 relied on the fact that Chen provided inconsistent testimony

3 about whether he had previously sought to come to the United

4 States. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d

5 Cir. 2008). During his hearing, Chen testified that, aside

6 from leaving China in September 2002 due to problems he

7 encountered while practicing Falun Gong, he had never wanted

8 to leave China at any other time, for any other reason. 

9 After Chen was presented with photographs of his former

10 fiancée, however, he admitted that he had applied for a

11 fiancé visa in 2001. Nevertheless, he continued to maintain

12 that he had no intention of coming to the United States. 

13 Because the IJ was entitled to rely on “any inaccuracies or

14 falsehoods” in Chen’s testimony “without regard to whether

15 [the] inconsistency, inaccuracy, or falsehood [went] to the

16 heart of [his] claim,” 8 U.S.C. § 1229a(c)(4)(C), the

17 agency did not err in finding him not credible based on this

18 inconsistent testimony. 

19 Having found Chen’s testimony not credible, the agency

20 reasonably noted that his failure to provide corroboration

21 of his claim further undermined his credibility. See Biao

22 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per

4
1 curiam); Maladho Djehe Diallo v. Gonzales, 445 F.3d 624,

2 633-34 (2d Cir. 2006). The IJ found that Chen failed to

3 provide corroboration or documentation with respect to his

4 heart condition, which Chen testified had prompted him to

5 join Falun Gong as an alternative to unsuccessful attempts

6 at medical treatment. Chen initially stated that he had

7 proof of his heart condition in China, but, when asked why

8 he did not submit that proof, he testified that he had not

9 kept it because the events occurred many years ago. The IJ

10 considered this explanation and did not err in finding it

11 insufficient, particularly given that Chen did not explain

12 why he changed his answer about whether he had medical

13 evidence in China or demonstrate any efforts to obtain

14 medical evidence. See Biao Yang, 496 F.3d at 273; Majidi v.

15 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Ultimately,

16 because a reasonable fact-finder would not be compelled to

17 conclude to the contrary, we defer to the IJ’s adverse

18 credibility determination. See Xiu Xia Lin, 534 F.3d at

19 167. 

20 Finally, Chen argues that he qualifies for asylum and

21 withholding of removal based on his fear that Chinese

22 authorities will sterilize him because he intends to have

5
1 two or more children. We decline to consider this issue

2 because, as the Government notes, Chen did not raise this

3 issue before the agency. See Foster v. INS, 376 F.3d 75,

4 77-78 (2d Cir. 2004). 

5 For the foregoing reasons, the petition for review is 

6 DISMISSED in part and DENIED in part. As we have completed

7 our review, the pending motion for a stay of removal in this

8 petition is DISMISSED as moot. 

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

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