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.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 24 thday of April, two thousand twelve. 4 5 PRESENT: 6 **ROSEMARY S. POOLER,** 7 **RICHARD C. WESLEY,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

_____________________________________ 11 12 Hong Chen, 13 Petitioner, 14 15 v. 10-5009-ag 16 NAC 17 **Eric H. Holder, Jr., Attorney** 18 **General of the United States,** 19 **Immigration & Naturalization** 20 **Service**, 21 Respondents. 22

_____________________________________ 23 24 **FOR PETITIONER: Hong Chen,** pro se**, New York, New** 25 **York.** 26 27 **FOR RESPONDENTS: Tony West, Assistant Attorney** 28 **General; Greg D. Mack, Senior** 29 **Litigation Counsel; Colin J. Tucker,** 30 **Trial Attorney, Office of** 31 **Immigration Litigation, United** 32 **States Department of Justice,** 33 **Washington, D.C.** 34UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 3 review is DISMISSED in part and DENIED in part. 4 Hong Chen, a native and citizen of the People’s 5 Republic of China, seeks review of a November 23, 2010, 6 decision of the BIA affirming the November 13, 2008, 7 decision of immigration judge (“IJ”) George T. Chew, which 8 pretermitted his application for asylum and denied his 9 applications for withholding of removal and relief under the 10 Convention Against Torture (“CAT”). In re Hong Chen , No. 11 A078 691 807 (B.I.A. Nov. 23, 2010), aff’g No. A078 691 807 12 (Immig. Ct. N.Y. City Nov. 13, 2008). We assume the 13 parties’ familiarity with the underlying facts and 14 procedural history of this case. 15 Under the circumstances of this case, we have 16 considered both the IJ’s and the BIA’s opinions “for the 17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 18 (2d Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528 19 (2d Cir. 2006)). The applicable standards of review are 20 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng 21 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 22

2**A. Asylum** 1 We lack jurisdiction to review the IJ’s decision 2 insofar as it pretermitted Chen’s untimely asylum 3 application because he does not present a constitutional 4 claim or question of law with respect to that determination. 5
See 8 U.S.C. § 1158(a)(3); Gui Yin Liu v. INS, 508 F.3d 6 716, 720 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of 7 Justice , 471 F.3d 315, 329-30 (2d Cir. 2006). Accordingly, 8 we dismiss Chen’s petition for review to this extent. See 9 Xiao Ji Chen, 471 F.3d at 329. However, we may review the 10 agency’s denial of withholding of removal and CAT relief. 11 See id. at 332-33. 12 **B. Withholding of Removal and CAT** 13 For applications like Chen’s that are governed by the 14 REAL ID Act of 2005, the agency may, considering the 15 totality of the circumstances, base a credibility finding 16 upon an applicant’s demeanor, the plausibility of his 17 account, and inconsistencies in his statements, without 18 regard to whether they go “to the heart of the applicant’s 19 claim.” 8 U.S.C. § 1229a(c)(4)(C). Here, the agency’s 20 adverse credibility determination is supported by 21 substantial evidence. 22

3In finding Chen not credible, the agency reasonably 1 relied on the fact that Chen provided inconsistent testimony 2 about whether he had previously sought to come to the United 3
States. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d 4 Cir. 2008). During his hearing, Chen testified that, aside 5 from leaving China in September 2002 due to problems he 6 encountered while practicing Falun Gong, he had never wanted 7 to leave China at any other time, for any other reason. 8 After Chen was presented with photographs of his former 9 fiancée, however, he admitted that he had applied for a 10 fiancé visa in 2001. Nevertheless, he continued to maintain 11 that he had no intention of coming to the United States. 12 Because the IJ was entitled to rely on “any inaccuracies or 13 falsehoods” in Chen’s testimony “without regard to whether 14 [the] inconsistency, inaccuracy, or falsehood [went] to the 15 heart of [his] claim,” 8 U.S.C. § 1229a(c)(4)(C), the 16 agency did not err in finding him not credible based on this 17 inconsistent testimony. 18 Having found Chen’s testimony not credible, the agency 19 reasonably noted that his failure to provide corroboration 20 of his claim further undermined his credibility. See Biao 21 Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (per 22

4curiam); Maladho Djehe Diallo v. Gonzales , 445 F.3d 624, 1 633-34 (2d Cir. 2006). The IJ found that Chen failed to 2 provide corroboration or documentation with respect to his 3 heart condition, which Chen testified had prompted him to 4 join Falun Gong as an alternative to unsuccessful attempts 5 at medical treatment. Chen initially stated that he had 6 proof of his heart condition in China, but, when asked why 7 he did not submit that proof, he testified that he had not 8 kept it because the events occurred many years ago. The IJ 9 considered this explanation and did not err in finding it 10 insufficient, particularly given that Chen did not explain 11 why he changed his answer about whether he had medical 12 evidence in China or demonstrate any efforts to obtain 13 medical evidence. See Biao Yang, 496 F.3d at 273; Majidi v. 14 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). Ultimately, 15 because a reasonable fact-finder would not be compelled to 16 conclude to the contrary, we defer to the IJ’s adverse 17 credibility determination.See Xiu Xia Lin , 534 F.3d at 18 167. 19 Finally, Chen argues that he qualifies for asylum and 20 withholding of removal based on his fear that Chinese 21 authorities will sterilize him because he intends to have 22

5two or more children. We decline to consider this issue 1 because, as the Government notes, Chen did not raise this 2 issue before the agency. See Foster v. INS, 376 F.3d 75, 3 77-78 (2d Cir. 2004). 4 For the foregoing reasons, the petition for review is 5 DISMISSED in part and DENIED in part. As we have completed 6 our review, the pending motion for a stay of removal in this 7 petition is DISMISSED as moot. 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12 13 14

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