17-4103 Chen v. Barr BIA Leeds, IJ A206 067 415 

### 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 United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 20 th**  **day of November, two thousand nineteen.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **REENA RAGGI,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XUEJIAO CHEN,** 13 Petitioner **,** 14 15 **v. 17-4103** 16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Troy Nader Moslemi, Flushing, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; John S. Hogan, 26 Assistant Director; Rebecca 27 Hoffberg Phillips, Trial Attorney, 28 Office of Immigration Litigation, 29 United States Department of 30 Justice, Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Xuejiao Chen, a native and citizen of the 5 People’s Republic of China, seeks review of a December 5, 6 2017, decision of the BIA affirming a March 6, 2017, decision 7 of an Immigration Judge (“IJ”) denying her application for 8 asylum, withholding of removal and relief under the 9 Convention Against Torture (“CAT”). In re Xuejiao Chen, No. 10 A206 067 415 (B.I.A. Dec. 5, 2017), aff’g No. A206 067 415 11 (Immig. Ct. N.Y. City Mar. 6, 2017). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 Chen raises only withholding of removal and CAT relief 15 in this Court. We have reviewed both the IJ’s and BIA’s 16 decisions denying relief on credibility grounds. See 17 Wangchuck v. DHS , 448 F.3d 524, 528 (2d Cir. 2006). The 18 applicable standards of review are well established. See 19 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions , 891 F.3d 20 67, 76 (2d Cir. 2018). 21 “Considering the totality of the circumstances, and all 223 relevant factors, a trier of fact may base a credibility 1 determination on the demeanor, candor, or responsiveness of 2 the applicant or witness, . . . the consistency between the 3 applicant’s or witness’s written and oral statements . . . , 4 [and] the internal consistency of each such statement . . . 5 without regard to whether an inconsistency, inaccuracy, or 6 falsehood goes to the heart of the applicant’s claim . . . .” 7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey , 534 8 F.3d 162, 163-64 (2d Cir. 2008). Substantial evidence 9 supports the agency’s determination that Chen was not 10 credible as to her claim that police detained and beat her on 11 account of her Falun Gong practice and that she continues to 12 practice Falun Gong in the United States. 13 The agency reasonably relied in part on Chen’s demeanor, 14 noting that her testimony was evasive. See 8 U.S.C. 15 § 1158(b)(1)(B)(iii); Majidi v. Gonzales , 430 F.3d 77, 81 n.1 16 (2d Cir. 2005) (recognizing that particular deference is 17 given to the trier of fact’s assessment of demeanor). The 18 demeanor finding is supported by the record, which reflects 19 that Chen repeatedly avoided answering questions the answers 20 to which would have been detrimental to her application. 21 The demeanor finding and overall credibility 224 determination are bolstered by record inconsistencies. See 1 Li Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d 2 Cir. 2006). Chen testified inconsistently and ultimately 3 admitted lying about her state of residence in the United 4 States. Further, Chen and her witnesses testified 5 inconsistently about Chen’s practice of Falun Gong. These 6 inconsistencies were not compellingly explained. See 7 Majidi , 430 F.3d at 80. 8 Having questioned Chen’s credibility, the agency 9 reasonably relied further on her failure to submit reliable 10 corroborating evidence. “An applicant’s failure to 11 corroborate his or her testimony may bear on credibility, 12 because the absence of corroboration in general makes an 13 applicant unable to rehabilitate testimony that has already 14 been called into question.” Biao Yang v. Gonzales , 496 15 F.3d 268, 273 (2d Cir. 2007). Chen did not corroborate 16 medical treatment she received in China for either the 17 chronic health issues that purportedly prompted her to 18 practice Falun Gong or for the harm she claimed to have 19 suffered in detention. Nor did she submit evidence that 20 her parents had paid a fine to secure her release from 21 detention. As to the documentation she did produce, the 225 agency reasonably declined to credit statements from Chen’s 1 husband and his aunt on account of their inconsistent 2 testimony, and did not err in declining to credit 3 statements from Chen’s parents and friend in China. See 4 8 U.S.C. § 1158(b)(1)(B)(iii); see also Y.C. v. Holder , 741 5 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s 6 decision to afford little weight to relative’s letter from 7 China because it was unsworn and from an interested 8 witness); Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 9 2007) (“An IJ may, either expressly or impliedly, rely on 10 falsus in uno to discredit evidence that does not benefit 11 from corroboration or authentication independent of the 12 petitioner’s own credibility.”). Further, Chen admitted 13 that the photographs of her Falun Gong practice were taken 14 solely for the purpose of her application rather than 15 spontaneously during her activities as a Falun Gong 16 practitioner. 17 Given Chen’s evasive demeanor, inconsistent evidence, 18 and lack of reliable corroboration, the agency’s adverse 19 credibility determination is supported by substantial 20 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). That 21 determination is dispositive of withholding of removal and 226 CAT relief because both claims are based on the same 1 factual predicate. See Paul v. Gonzales , 444 F.3d 148, 2 156-57 (2d Cir. 2006). 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our rev iew, any stay of removal 5 that the Court previously granted in this petition is VACATED, 6 and any pending motion for a stay of removal in this petition 7 is DISMISSED as moot. Any pending request for oral argument 8 in this petition is DENIED in accordance with Federal Rule of 9 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 10 34.1(b). 11

FOR THE COURT: 12 Catherine O’Hagan Wolfe 13 Clerk of Court 14 15